Colonial genocide and law

Merkur 4/2023

German policy on colonial genocide: legal responsibility via a collective right of memory? Also: colonial currencies and relationships of debt, and the problem with the Federal Constitutional Court’s doctrine of neutrality.

Germany’s failure to accept legal responsibility for its colonial genocide in South-West Africa is an example of what Tunisian-Jewish sociologist Albert Memmi referred to as the ‘exiling of the colonized from their own history’, writes the jurist Benno Zabel in Merkur.

‘For decades, German policy consisted either in contesting the genocide of the Herero, or in treating it as an act of colonial rule covered by national and international law. The Federal Republic has since recognized it in moral and political terms. However, Germany still emphatically refuses all legal liability’. Reparations are therefore out of the question.

The principle of ‘intertemporality’ prevents genocides committed in colonial contexts being prosecuted. Because the Herero were not subjects of international law at the time, the German state cannot be held liable. Not only does this create continuity between the logic of colonial rule and the democratic state, writes Zabel, it ignores collective memory.

Law, he argues, ‘remains confined to its function in securing order and is repeatedly caught in historically indifferent narratives. Collective memory as the Other of the law. Is that not a capitulation in the face of one’s own history and responsibility?’

The ‘right to have rights’, as Arendt famously put it, entails ‘a theory and praxis of human rights that gives the law back to people. The tension between national, international, social and political interests becomes clear only through this concept of human rights.’

Collective human rights create the ‘conditions for recognition among equals and thus for solidarity between societies’, while a human right of collective memory would create a legal space including both victims and perpetrators. Only then can there be ‘something like a respectful engagement with the memory politics of the other side’.

‘A right of collective memory would not solve all the problems that arise from the wounds and the history of the genocide. Perhaps as part of a legal regime it would also cause new problems. But the entitlement and protective function would make it possible for the historically conditioned vulnerability of the descendants of the Herero – their stories, their powerlessness and their grief – to enter the cultural memory of the former colonial power and society. Not just that, it could enable liberation from a purely passive status as victim and create trust in a future with full autonomy. For the descendants of the Herero and for Namibian society and politics, that would indeed be an act of historical justice.’

Colonial currencies

Historian Mischa Suter explores the relationship between colonial currencies and relationships of debt. The answer to the question who was indebted to whom – the coloniser or the colonized – depends on how one defines value, he writes: ‘The key thing is not the extent of profits or state subsidies, as the colonial accounting called it, but the change of form, the translation of value that was necessary for the extraction of profit.’

‘The exchange from the goods currencies common in East Africa into German rupees, and from the latter into Deutschmark, was a complex process. Simply put: valorisation looks different when we problematize the measure of value itself. Because behind it was not just a different method of calculating, but also laborious and often violent practices of translation.’

The neutrality doctrine

Constitutional lawyer Florian Meinel examines the recent jurisprudence of Germany’s Federal Constitutional Court concerning the obligation of members of government to remain politically neutral in their public statements.

The Court’s new doctrine of communicative neutrality – controversial even among its own judges – not only attempts a problematic ‘decoupling of the legitimation of state power from the political language of the public sphere’, but also conceals an anti-political critique, according to Meinel:

‘The claim that the neutralization of political language, in other words the separation of office and emotion, preserves the political competition is – it would seem – close to the conviction that such competition does not actually exist.’

Published 5 April 2023
Original in English
First published by Eurozine

Contributed by Merkur © Eurozine

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