A Meeting in Namibia and Botswana

I travelled from New York to Windhoek, Namibia on Wednesday, March 27th at the invitation of Paramount Chief Rukoro of the Ovaherero Traditional Authority (OTA) and Chief Isaack of the Nama Traditional Leaders Association (“NTLA”). I was accompanied by my wife, Susan, and my youngest son, Foard. We were warmly greeted at the Hosea Kutako International Airport by a large delegation of Nama leaders, and by a Herero delegation from the OTA, led by Bob Kandetu, the OTA’s Chief-of-Staff and a well-known Namibian journalist and writer.

We first travelled to Swakopmund to attend a three-day international law conference there on the 1904-1908 Genocide of the Ovaherero and Nama by German imperial forces and “The Case for Restorative Justice.” The sponsors for the conference included the European Center for Constitutional and Human Rights (ECCHR), the Ovaherero Genocide Foundation (OGF), and the Nama Genocide Technical Committee (NGTC). The Conference had an overflow crowd for most of the sessions, and was well attended by delegations of academics, experts, leaders and representatives of the Herero and Nama communities from Namibia, Botswana, South Africa, the UK, Canada, Germany and the U.S.

Among the topics discussed were the continuing impact on Namibian society caused by the German colonial past, including the fact that Herero and Nama families and communities that had their land, cattle and other properties expropriated by the Germans during the 1904 to 1908 period and thereafter continue to suffer inter- generational poverty. Since much of the Herero and Nama wealth and well-being depended on their ownership and use of their rich grazing lands for their cattle and other livestock, they continue to suffer from these losses still they have not had those lands and other property restored to them and have still not received any just compensation for these expropriations and unlawful takings. Based upon what we saw during our travels in Namibia, much of the wealth in the country still depends on land and grazing rights, such as the vast areas in eastern Namibia around Gobabis, which proudly declares itself to be “cattle country.”

It became clear during the discussions at the Swakopmund conference that without significant land reform or a settlement with Germany providing substantial funds for the Herero and Nama communities to purchase grazing lands and purchase cattle and other livestock, the cycle of poverty that has held many Herero and Nama communities in its iron grip for generations cannot be broken.

During the Swakopmund conference, Paramount Chief Rukoro and Chief Isaack addressed a packed hall on their efforts on behalf of the Herero and Nama people to seek restorative justice from Germany for the losses that their communities suffered as a result of the genocide and loss of their lands and property without compensation or restitution. They and the other Herero and Nama leaders and technical advisors at the Conference emphasized that the Herero and Nama communities of Namibia have unanimously chosen them as their lawful representatives, as well as the Herero and Nama communities in Botswana, South Africa, the U.K. Canada and the U.S., which are where all the significant communities of the Herero and Nama diaspora are located. Moreover, it was emphasized by the Herero and Nama leadership, as well as the numerous members of those communities who were attending the Conference, that the government of Namibia could not possibly represent the interests of the Herero and Nama communities in Botswana, South Africa and elsewhere since they are not Namibian citizens, and the Namibian government has not even offered them dual citizenship. Their families fled for their lives during the 1904-1908 genocide, seeking protection in Botswana, South Africa and elsewhere, and they have never been offered the return of their stolen lands, cattle or other property. Consequently, they have no incentive or reason to return to what is now Namibia, where they would be little more than poor, powerless and landless refugees. They have, therefore, unanimously decided, on an individual and family basis, and through their own community and regional chiefs, that P.C. Rukoro (in the case of the Herero) and Chief Isaack (in the case of the Nama) are their chosen and lawful representatives for, among other things, all matters relating to negotiations and settlement of their genocide claims against Germany.

At the Conference, Paramount Chief Rukoro recounted a moving personal family history regarding its losses suffered during the German colonial period, which is apparently typical of many Herero and Nama families. His family’s ancestral lands remain today under the ownership of the descendants of the Germans who originally expropriated their property without compensation. Although the current German owner of the property is kind enough to let the Rukoro family members visit their ancestors’ gravesites on the property, the harsh reality is that 115 years after the expropriation of their lands, Herero and Nama families have never received any compensation for their property or livestock losses, and there is no indication that the current “negotiations” between Germany and the Namibian government will result in any restitution or compensation to these Herero and Nama families and communities.

In fact, Germany has made it clear that it will not make any restitution as part of a “settlement” with the Namibian government. Since when, it may be asked, does a criminal have the right to dictate the terms of his or her sentence? No criminal ever wants to pay a significant price, either in jail time or in restitution to the victims of the crime. And yet the Namibian government seems to be acquiescing to Germany’s flawed “no restitution” argument, as if there can somehow be a final peace and final settlement of these issues without a true plan for restorative justice, which would require the participation of the Herero and Nama acknowledged leadership in the settlement negotiations. What is the Namibian government afraid of? Why is it of no apparent importance to them that the Herero and Nama communities in both Namibia and worldwide will view any “settlement” entered into without the participation of their chosen leaders as an illegitimate sham? Nor have the terms of the “imminent” settlement with Germany ever been publicly disclosed so that the communities that were targeted for genocide – the Herero and the Nama – can even comment on them before the government tries to sign away their rights? These were some of the significant and timely questions and considerations discussed at the Conference.

During the Swakopmund Conference, I also participated – along with my colleague Michael Lockman — in a panel discussion on the status of the U.S. federal court litigation in New York. Although the federal district court recently granted Germany’s motion to dismiss, most of the court’s written decision was a landmark victory for the Herero and Nama plaintiffs in that, for the first time, a court recognized that the mass killings, attempted extermination of the Herero and Nama and expropriation of their property by Germany during the 1904 to 1908 period was, in fact, a violation of existing international law both now and at the time, which prohibited wars of annihilation and extermination. The U.S. federal court’s written decision also contained an acknowledgment that the Herero and Nama peoples have never been justly compensated for the unlawful taking of their property. In so ruling, the court rejected Germany’s shameful argument that its horrific actions did not violate international law at the time, and its suggestion that the Herero and Nama were not “civilized” peoples, such as Europeans, who could claim the protection of international law.

The court found, in essence, that although the term “genocide” was not widely used prior to the end of World War II, the attempt to exterminate a people based upon their race, color or ethnic identity was prohibited during this 1904 to 1908 time period, and that Germany violated this established international law at the time by attempting to exterminate both the Herero and Nama peoples, and in substantially succeeding in that goal. The court decision also acknowledged that Hereroland and Namaqualand were highly developed tribal entities at the time, and that Germany accepted these sovereign states as independent political and legal entities by entering into treaties with them, and thus acknowledging their sovereign rights. Germany, of course, broke these treaties by, among other things, stealing land directly from the Namas and Hereros through deceit, fraud and trickery, and later by force, without compensation.

The U.S. federal district court also accepted plaintiffs’ argument that the monies obtained by the Germans through the confiscation and sale of the Herero and Nama expropriated properties went into the German treasury and then became part of the available funds for Germany to buy buildings and property in New York, which it still owns. In addition, the court also acknowledged plaintiffs’ evidence establishing that Germany benefitted financially from the sale of the human skulls and bones of the genocide victims, which were transported to Germany in crates and then displayed or sold to various museums. Some of these skulls were sold to the American Museum of Natural History (AMNH) in New York, where they remain today.

It was further discussed at the Swakopmund conference that, although the district court found that plaintiffs had not met the technical requirements for exceptions to the Foreign Sovereign Immunities Act (FSIA) that would give the U.S. courts jurisdiction over another sovereign state, such as Germany, the plaintiffs’ lawyers have already appealed the lower court’s decision to the Second Circuit Court of Appeals. We further explained that in this appeal to a three-judge appellate panel, we had identified 17 clear- cut errors in the court’s decision that we belief are the basis for a reversal of the lower court’s decision. This appeal has been put on an expedited schedule, in recognition of the importance of the case.

While in Swakopmund, we also participated in the annual remembrance walk there by members of the Herero and Nama communities to the burial ground for victims of the 1904-1908 Genocide. We visited the site of the Concentration Camp and Mass Grave Memorial of the Herero and Nama victims who died there. At the closing ceremonies of the Conference, Paramount Chief Rukoro honored the legal team by giving Michael Lockman and I Herero names in recognition for the legal work that we have been doing on behalf of the Herero communities. We were very moved and honored by this gesture of confidence in us by the Herero leadership and community. My Herero name is now “Nokokure.” We were also both given walking sticks inscribed with our Herero names, which was a very moving experience for me and my family, especially since we have established some close collegial bonds of friendships in Namibia and the U.S. with P.C. Rukoro, members of the OTA staff, as well as leaders of the Ovaherero community in New York and elsewhere in the U.S.

We then travelled back to Windhoek and then down to Keetmanshoop and Luderitz, where we were warmly welcomed by Nama Chief Isaack, Chief Kooper and other leaders and members of the NTLA and the Nama communities. The meeting halls we went to were packed with Nama, who welcomed the opportunity to share with us the terrible suffering that their families experienced during the genocide. They also honored my son and I with traditional colorful Nama hats, and they very generously gave my wife a traditional Nama shawl. We were all very moved by their generosity.

We visited the notorious concentration camp at Shark Island, near Luderitz, where we were surprised to see that there were no plaques or historical markers explaining that this was the concentration camp and extermination camp for Nama and Herero prisoners during the 1904 to 1908 period, and that after they died and were worked to death by the German authorities, many of their heads of the victims were severed, boiled and the Nama and Herero women were forced to cut off the remaining skin from the skulls so that they could be shipped back to Germany and sold as part of a profitable “bone trade” by the Germans. The Germans also performed pseudo-scientific experiments on the dead Herero and Nama victims in an attempt to “prove” that the white and Germanic races were superior to black Africans. The bodies of the victims were then thrown into the sea, where they were eaten by the many sharks in the area. There is a monument there to Chief Fredericks of the Nama, who was interned and died there, along with hundreds of his family members and Nama followers. However, there is no other historical plaque or other information provided at Shark Island telling the story of how it was used by the Germans as a concentration camp as part of its campaign of genocide against the Herero and Nama peoples.

We were also disturbed to see that this sacred ground was being managed by the Namibian government authorities as a campsite for tourists, and that the most prominent memorial at Shark Island is to German soldiers and to Luderitz himself, who was one of the chief architects of German colonialism in South West Africa. None of the German soldiers buried there now and who are honored with a memorial died (to the best of my knowledge) at Shark Island. Rather, they were active participants in the 1904-1908 genocide, and shared responsibility with their German government in carrying out the extermination orders clearly in violation of international law. Along with General von Trotha, who issued the extermination order, these soldiers may well have been war criminals for carrying out this extermination plan. When these soldiers died, they were buried elsewhere, not at Shark Island, and then their remains were then exhumed and re- buried at Shark Island as part of a plan to honor the reprehensible and genocidal actions of the German military during this period. This is as shameful and shocking as if monuments to the Nazi soldiers who murdered thousands and millions of Jews at the death camps such as Auschwitz were erected at those concentration camps, rather than honoring the memories of the victims of the genocide.

In our opinion, Shark Island and the locations of the other concentrations camps in Swakopmund and elsewhere where Herero and Nama were worked to death and slaughtered should be both national and world historical sites in memory of the 1904- 1908 genocide and a remembrance by all Namibians and all Africans to the courageous resistance of the Herero and Nama peoples to German colonialism and attempts to subjugate the African peoples. This anti-colonial resistance was initially successful, where Herero and Nama warriors with little more than spears and their own courage defeated a well-armed German military force. It was only when the Germans retreated to fortified position and called for help from a large German expeditionary force that was sent to support them that Germany was able to defeat the Herero and Nama forces. Germany felt humiliated by having been initially defeated by native Herero forces, and retaliated by issuing an extermination order against the Herero on October 2, 1904, and then another one in 1905 against the Nama.

We actually visited the site at Ozumbu Zovindimba (near Otjinene) where German General Lothar von Trotha issued his written extermination order against the Herero, and the “hanging tree” nearby where German troops hung captured Herero unarmed men, women and children who were trying to flee eastward into Botswana. The metal hanging nooses are still on the dying tree 115 years later, but there is no memorial plaque or other historical marker explaining the importance of what happened there. There are also burial puts there near wells and watering holes that the Germans poisoned, and where the Herero and Nama died. Their bones are still lying in these unmarked pits, unprotected from the dogs and jackals that roam the area and feed on the unprotected remains of the bones of the dead.

The historical significance of this place cannot be overestimated, since this was the first (and last time) in history that there was a written extermination order of an entire peoples. Not even the Nazis, in their zeal to exterminate the Jewish people, ever put their plans into writing. And yet there is not one government plaque at the site commemorating this terrible and historically significant event. It is also my understanding that not one Namibian government representative has ever attended one of the annual October 2nd remembrance events at this sacred site organized by the Herero and Nama leadership. I, therefore, cannot understand why the Namibian government thinks that it can speak for the Herero and Nama peoples in their negotiations with Germany, when it cannot even bring itself to send a representative to such important historical remembrance events. I also have come to understand why the Herero and Nama peoples are skeptical of the Namibian government’s promises to protect their interests in any settlement, when they have seen very little if any of the German foreign aid money trickle down to their communities over these many years. Many – if not most – of the Herero and Nama communities we visited consist primarily of shacks with no water, sewer or electricity, as far as I can tell. There are no power lines to these communities, and their main roads are mostly dirt roads riddled with potholes. It seemed to me as if these communities had been lost in time, forgotten by their own government.

We also visited Okahandja, which is a sacred place to the Ovaherero, and we visited and prayed with a large group of Herero and Nama at the grave sites of the fallen Paramount Chiefs of the Herero who are buried there, and who had chosen to be buried next to Nama Chief Afrikaner, as a demonstration of the solidarity and friendship between the Herero and Nama peoples as joint victims of the genocide. During a ceremony there, my family and I received a lovely gift of traditional Herero pottery, which is used for storing milk and churning it into buttermilk. I am not sure we will actually use it for its originally intended purpose, but the pottery items are clearly works of arts that we will proudly display in our home upon our return to New York.

While entering Botswana, we had a bit of a scare when the Botswana immigration officer told us that we needed our son’s birth certificate, since he is under 16. We had not been previously told about this when we had checked the U.S. State Dept. on what papers we needed to travel to Botswana. However, when they saw that my son is a virtual xerox copy or duplicate of me (only much younger) and that he bears the same name as me (I am “Sr.” and he is “Jr.”) we were permitted to enter Botswana without further problem. Just across the border, at Charles Hill, we were greeted by a huge crowd of both Herero and Nama residents of Botswana, with the women attired in their colorful red dresses and distinctive hat, and many of the men wearing traditional Herero military-style uniforms. Young members of the local Herero “commando” unit marched for us and gave us a sample of their traditional Herero war cries, which sent an involuntary shiver down my spine even though we were clearly on the same side and they were honoring our visit. I imagined how the German soldiers must have felt when they heard the same war cries in the initial battles where the Herero warriors prevailed, despite the overwhelming German superiority in equipment and firepower.

When the festivities at Charles Hill in Botswana moved indoors into a packed hall, some of the colorfully-dressed Herero women took my wife aside, and shortly thereafter, she re-appeared wearing a yellow Herero gown and hat, which she greatly appreciated and made her look even more lovely than usual. She looked like a true Herero woman, only with blond hair. After the speeches in the hall by the assembled Herero chiefs of Botswana, and by myself, the entire crowd was invited to a traditional outdoor after-dark gathering around a huge bonfire. A huge dinner was served, with ample portions of beef and lamb, which is a staple of all Herero meals at special occasions. Songs were sung and stories were told around the “circle of fire,” and after several hours, when the embers of the fire began to die out, we reluctantly left for a good sleep in a room provided by the local Herero chief.

On Friday, April 5th, our final full-day in Namibia, we attended a large and enthusiastic gathering of Herero at Katutura Township, near Windhoek. A local Herero commando group gave an enthusiastic display of their skills, and both I and Paramount Chief Rukoro addressed the gathering, telling them about the Conference, the New York case and our travelling experiences over the past two weeks in both Namibia and Botswana. My son received a colorful red Herero hat and shirt, and I received a statute of a horse, which is a traditional Herero symbol of their attachment to the land. Members of the Herero delegation that accompanied us from the U.S. to Namibia — Dr. Ngondi A. Kamatuka of Kansas University, Barnabas Veraa Katuua, a noted architect from New York, and Vepuka Kauari, Director of Nursing at New York Presbyterian Hospital — were also honored with very special Herero lapel pins. The Namibian Broadcasting Corp. (NBC) covered the event, and earlier in the day I had a taped interview at the NBC studio in Windhoek.

All in all, our entire trip to Namibia was breathtaking, exciting and memorable, which my family and I will always cherish.

THE DONBAS CONFLICT: RUSSIA’S CULPABILITY UNDER INTERNATIONAL LAW

During the ongoing armed conflict between Ukrainian government forces and pro-Russian separatist insurgents in the Donbas region of Ukraine (the Donetsk and Lugansk Oblasts) that began in April 2014, numerous human rights violations and violations of international law have been noted on the part of the separatists affiliated with the so-called Donetsk People’s Republic (DPR) and Lugansk People’s Republic (LPR). In a report from the UN Human Rights Monitoring Mission, Ivan Šimonović, UN Assistant Secretary General for Human Rights, wrote about targeted killings, torture, abduction, illegal detention, and intimidation of election officials in the self-proclaimed pro-Russian republics, and called for urgent action to prevent a Balkans-style war. He also warned of a humanitarian crisis due to a failure of social services in the region, and an exodus of people from affected areas. The UN also reported threats against, attacks on, and abductions of journalists and international observers, as well as the beatings and attacks on supporters of Ukrainian unity.

A similar report by Human Rights Watch said: “Anti-Kiev forces in eastern Ukraine are abducting, attacking, and harassing people they suspect of supporting the Ukrainian government or consider undesirable…anti-Kiev insurgents are using beatings and kidnappings to send the message that anyone who doesn’t support them had better shut up or leave”.

The use of abductions as a method to maintain political power and to terrorize the local population into submission appears to have been one of the preferred abusive techniques utilized by the pro-Russian separatist leadership. In early July, 2014, Amnesty International published a report based upon evidence of beatings, torture, and abduction of activists, protesters and journalists by insurgents in the Donbas region. It said that “while most abductions appear to have a ‘political’ motivation’, there is clear evidence that abduction and torture is being used by armed groups to exert fear and control over local populations”. The report also said that some people had been abducted for ransom. The report summarized its finding by stating that “the bulk of the abductions are being perpetrated by armed separatists, with the victims often subjected to stomach-turning beatings and torture.”

A report by the United Nations OHCHR that was released on July 28, 2014 said that insurgent groups continued “to abduct, detain, torture and execute people kept as hostages in order to intimidate and to exercise their power over the population in raw and brutal ways”. The report documents that at least 812 people have been abducted by the insurgents since mid-April, and said that “the majority are ordinary citizens, including teachers, journalists, members of the clergy and students”.

A statement released on August 22, 2014 by the Lithuanian foreign minister said that the Lithuanian honorary consul in Luhansk, Mykola Zelenec, was abducted by pro-Russian insurgents and killed.

A report by Human Rights Watch said that the insurgents had been “running amok…taking, beating and torturing hostages, as well as wantonly threatening and beating people who are pro-Kiev”. It also said that the insurgents had destroyed medical equipment, threatened medical staff, and occupied hospitals. A member of Human Rights Watch witnessed the exhumation of a “mass grave” in Sloviansk that was uncovered after separatists retreated from the city.

Captured Ukrainian soldiers have been subjected to public humiliation and other abuses in violation of international law. Insurgents with bayonet-equipped automatic rifles in the city of Donetsk paraded captured Ukrainian soldiers through the streets on August 24, 2014, the Independence Day of Ukraine. During the parade, Russian nationalistic songs were played from loudspeakers, and members of the crowd jeered at the prisoners with epithets like “fascist”. Street cleaning machines followed the protesters, “cleansing” the ground they were paraded on. Human Rights Watch said that this was in clear violation of the common article 3 of the Geneva Conventions. The article forbids “outrages upon personal dignity, in particular, humiliating and degrading treatment”. They further said that the parade “may be considered a war crime.” On the following day, the insurgents tied a woman accused of being a spy to a lamppost. They wrapped her in a Ukrainian flag, and had passers-by spit her, slap her, and throw tomatoes at her.

In October 2015, the DPR and LPR banned non-governmental organizations such as Doctors Without Borders and World Food Program from the territory that they control. A report released on March 3, 2016 by the Office of the United Nations High Commissioner for Human Rights (OHCHR) said that people that lived in separatist-controlled areas were experiencing “complete absence of rule of law, reports of arbitrary detention, torture and incommunicado detention, and no access to real redress mechanisms”.

According to the United Nations Children’s Fund (UNICEF), “The results of a psychosocial assessment of children in Donetsk Oblast in Eastern Ukraine are deeply troubling … and indicate that about half of all children aged 7-18 have been directly exposed to adverse or threatening events during the current crisis.” OSCE monitors spoke to refugees from Donetsk city in Zaporizhia. They said that men were “often not allowed” to leave the city, but were instead “forcibly enrolled in ‘armed forces’ of the so-called ‘Donetsk People’s Republic’ or obliged to dig trenches”.

By June 2015, the conflict had created 1.3 million internally displaced people (IDPs). According to the OHCHR, this number had grown to 1.6 million people by early March 2016.

As the shaky ceasefire implemented by the Minsk Protocol became increasingly untenable in early November 2014, it was reported that the number of people that had fled insurgent-held areas of Donbas had reached one and a half million. Those forced to stay in the region were largely elderly, destitute, or otherwise unable to flee. Schools had been abandoned, and many had been converted into weapons depots or unlawfully used for other military purposes, as roughly half of the pre-war population of school-age children had left Donbas.

A map of human rights violations committed by the separatists called the “Map of Death,” was published by the Security Service of Ukraine (SBU) in October 2014. The reported violations included detention camps and mass graves. Subsequently, on October 15, 2014, the SBU opened a case on “crimes against humanity” perpetrated by insurgent forces.

Amnesty International reported evidence  of summary killings of Ukrainian soldiers on April 9, 2015. Having reviewed video footage, it determined that at least four Ukrainian soldiers had been shot dead “execution style”. The AI deputy director for Europe and Central Asia said that “the new evidence of these summary killings confirms what we have suspected for a long time”. AI also said that a recording released by Kyiv Post of a man, allegedly separatist leader Arseny Pavlov, claiming to have killed fifteen Ukrainian prisoners of war was a “chilling confession”, and that it highlighted “the urgent need for an independent investigation into this and all other allegations of abuses”.

Russia and its leadership bear substantial responsibility for the War Crimes and human rights abuses committed by the insurgent forces in Donbas, since the insurgents are basically nothing more than proxies for Russia, in its attempt to carve off a large chunk of Ukraine close to its borders. Since Russia aided and abetted the violations of international law committed by the insurgent forces, it may be held legally responsible in U.S. courts and in various international courts for the loss of human life and destruction of property caused by the insurgent forces. Plaintiffs in such a case could be either Ukrainian or other non-U.S. citizens, who could utilize the Alien Tort Statute (28 U.S. 1350), or they could be U.S. citizens or refugees currently within the United States who could seek jurisdiction in the U.S. courts under federal common law, which incorporates customary international law.