Historical context

German colonial atrocities against the Ovaherero and Nama are now recognized as the 20^th century's first genocide.Footnote ¹¹ On 2 October 1904, Lothar von Trotha issued his infamous extermination order (Vernichtungsbefehl)Footnote ¹² to the German colonial forces (Schutztruppen), instructing them to shoot all Ovaherero regardless of age or gender and otherwise drive them into the Omaheke desert, where German troops encircled water wells.Footnote ¹³ Thousands of Ovaherero died of dehydration, while many others were shot. On 25 April 1905, another extermination proclamation targeted the Nama. Survivors were interned in camps or forced into hard labour on farms expropriated by the Germans. Approximately 30–50% of the detained died until 1908 due to inhumane conditions.Footnote ¹⁴ A German-organized census of Ovaherero in then-German South West Africa counted 15,130 survivors, whereas their pre-war numbers are estimated at 80,000.Footnote ¹⁵ Although the 1960s saw researchFootnote ¹⁶ on these atrocities, public awareness in Germany was low until Namibia's independence in 1990. Even since then, German public debate about its colonial past has remained muted.

German engagements with Namibia since 1990 have rested on what Germany calls a ‘special relationship’ that entails ‘moral and historical’, but not legal responsibilities. These ‘special responsibilities’ Germany expresses in development assistance payments providing the highest per-capita funds in German–African relations. These bilateral ties are presented as a ‘good will’ recognition of colonial legacies that avoids the distinct normative authority of (international) law. The Namibian state directs much of the funds to areas formerly subjected to German colonial rule and not directly to the descendants of survivors of colonial violence. These circumstances highlight problematic centrepieces of Germany's engagement with its colonial history. These are, first, the refusal to negotiate directly with Ovaherero and Nama communities and, second, the stance that reparations cannot be paid, because no genocide occurred in the international legal sense of the word due to the non-retroactivity of treaties.

Key themes tackled here also arise in the 2021 Namibian–German ‘joint declaration’, which resulted from 6 years' of strictly bilateral negotiations that excluded Ovaherero and Nama representatives.Footnote ¹⁷ Germany there ‘accepts [its] moral, historical and political obligation to tender an apology for this genocide’ [in a historical sense] and, in a religious register, ‘asks for forgiveness for the sins of [its] forefathers’.Footnote ¹⁸ It further announces delivery of 1100 million Euros over 30 years, of which 1050 million will support schemes for the relevant communities. The declaration also stresses that it ‘settle[s] all financial aspects of the issues relating to the past’ – meaning reparations are off the table.Footnote ¹⁹ Unsurprisingly, the declaration also invokes the Genocide Convention, but not without referencing the year of its passage (1948) and – importantly – its preamble, which is the Convention's one part that does not confer international legal obligations.Footnote ²⁰ It is this articulation of the reparations question via the non-retroactivity of treaties that removes it from the realm of international law, into which it was first placed.

Stakes

The stakes of Germany's legalist deflective politics become clearer against the backdrop of politico-moral arguments that indicate the country's reparative obligations for historical injustice. At the same time, outlining politico-moral obligations for colonial reparations highlights that drawing on international law to deflect reparation claims does not settle the debate, but merely undermines such claims using a vocabulary compromised by the history of colonial legality itself (see section four).

The point can be illustrated by a brief consideration of argumentsFootnote ²¹ on redressing historical wrongs.Footnote ²² Of the theories that have tackled the issue of repairing colonial wrongs across the passage of time, ‘interactional’ and ‘structural’ accounts are helpful in sharpening the stakes of our case. Those adopting an interactional approach to rectifying past injustice must show that the relevant parties to reparations debates, as well as the wrongs caused, persist into present times,Footnote ²³ such that currently living agents are entitled to and obligated to provide redress.Footnote ²⁴ Thompson (Reference Thompson2002) provides an intergenerational argument for claims raised by descendants of survivors of past injustice. She argues that currently living agents can claim reparations for historical wrongs because they are connected to their deceased ancestors, who suffered colonial injury directly,Footnote ²⁵ through a special transtemporal relationship. Similarly, she argues that essentially intergenerational communities, such as nation-states,Footnote ²⁶ must accept obligations to redress colonial injustice given the benefits arising from membership in such communities.Footnote ²⁷ Arguments on institutional or corporate continuity offer another interactional perspective on the question of redressing historical injustice.Footnote ²⁸ Tan argues that harm inflicted on a nation or a peopleFootnote ²⁹ as identifiable corporate groups, such as the Ovaherero and Nama, exceeds harm done to then-alive individuals and carries through time by way of the group's collective persistence.Footnote ³⁰ Kukathas similarly maintains that collective associations with authority structures, such as states, have enduring institutional obligations that are not limited by individuals' life spans,Footnote ³¹ because such institutions persist over time despite changing composition of membership.Footnote ³²

Both the intergenerational and the corporate continuity accounts show that Ovaherero and Nama and Germany are sufficiently consistent collective agents over time. Therefore, one can argue that Ovaherero and Nama today have legitimate claims against Germany for its historical violence. The question then arises in what way historical injustices have persisted such that Ovaherero and Nama could still demand reparation claims. Several factors amount to what Tan captures as loss of economic and political self-determination of a corporate group.Footnote ³³ In their 2023 letter to the German and Namibian governments, seven United Nations (UN) Special Rapporteurs highlight the intergenerational poverty resulting from Germany's colonial theft of land,Footnote ³⁴ cattle, and overall means of livelihood.Footnote ³⁵ The letter argues that this loss of assets still requires German reparative measures. It also highlights that the colonial assaults on the Ovaherero and Nama very significantly reduced their population, which continues to render them electoral minorities in Namibia.Footnote ³⁶ These observations stress that Germany refuses to engage the Ovaherero and Nama precisely because there is reason to argue that their silenced claims have valuable grounds.

Still, certain nuances relevant to Germany's deflection of claims by Ovaherero and Nama and their international advocatesFootnote ³⁷ are not satisfactorily captured by interactional accounts such as Thompson's and Tan's, because these approaches do not focalize the institutional, political, and legal contexts within which Germany continues to undercut the Ovaherero and Nama's reparation claims.Footnote ³⁸ A structural approach to questions of historical injustice thus offers a wider angle on the relevance of Germany's resort to international law to deflect from its reparative obligations.

Lu develops such a structural approach to justice and reconciliation in a post-colonial world order. On this account, colonialism cannot be reduced to wrongful interactions between former colonizers and the formerly colonized, because colonialism occurred in and through unjust international structures, including colonial legality.Footnote ³⁹ Redressing colonial injustice therefore ought to exceed interactional, inter-state processes and requires domestic and international structural changes to the background conditions that continue to undercut the self-determination of whole peoples.Footnote ⁴⁰ Lu's own assessment of the Ovaherero and Nama's claims shows that the strictly bilateral diplomatic process between Germany and Namibia ‘reflects the structural bias of a statist order’ that continues to eschew the agency of the Ovaherero and Nama as the very people Germany wronged historically.Footnote ⁴¹ The erasure of the Ovaherero and Nama's position in these interstate negotiations ‘share[s] similarities with the historic denial of Herero entitlements to political standing and self-determination that attended German settler colonialism, which culminated in genocide’.Footnote ⁴²

Although the concept of structural injustice exceeds the domain of unjust legal norms,Footnote ⁴³ Lu also highlights both colonial legality itselfFootnote ⁴⁴ as well as the current ‘lack of acknowledgement that the legality of colonialism […] was wrong’Footnote ⁴⁵ as elements of structural injustice. This perspective spotlights Germany's distinctly legalist strategies of deflection, which includes its reliance on non-retroactivity as an element of inter-temporal international law. It is no coincidence that UN representatives have criticizedFootnote ⁴⁶ the politicization of international legal principles in what I call Germany's chronopolitics of deflection.

A structural account therefore accentuates the relevance of the following analysis. It underscores that Germany's chronopolitics of deflection, articulated via the non-retroactivity of international law, refuses to undo the reproduction of colonial legality. The chronopolitics of deflection indirectly reinforceFootnote ⁴⁷ – or at least fail to renounce – colonialism's entwinement with racist lineages of 19^th-century international law.Footnote ⁴⁸ By invoking inter-temporal legal principles, Germany avoids conceding that colonial international law was itself objectionable,Footnote ⁴⁹ thereby failing its structural obligation to revise formal and informal aspects of the contemporary international order that continuously recall post-colonial hierarchies.

The politico-moral arguments outlined above set the background against which Germany's legalist deflections come into starker view. However, rather than asking what Germany's reparative obligations are (as important as this question is), this project asks how Germany as a former colonial power mobilizes international law to foreclose reparation debates. More specifically, it asks what conceptions of political time underlie such legalist strategies, and what we might conclude more broadly about the political valence of international law within the specific context of colonial reparations.

From this angle, the German resort to international law to avoid questions of colonial reparations illustrates a strategy that Johnstone and Ratner term ‘nonjudicial legal argumentation’.Footnote ⁵⁰ Their examination of states' motivations for legal argumentation in political debates beyond courtrooms yields the insight that Germany deploys international law to evade criticisms of its anti-reparation stance as a mere policy choice. As Venzke shows, law's distinct claim to authority obfuscates that non-judicial legal arguments are themselves debatable political choices.Footnote ⁵¹ These arguments underscore how Germany resorts to the seeming certainty of the non-retroactivity of international law, thereby effectively distancing its anti-reparation stance from the above-sketched politico-moral dimension of potential reparative obligations.

International law to the ‘rescue’

The signature traits of Germany's engagement with its colonial past are the strategic framing of German colonial reparations as a matter exclusively of international law and the simultaneous foreclosure of the issue by means of the non-retroactivity of law. Overall, governments have drawn on the inter-temporality of law and on the non-retroactivity of treaties to deflect reparation debates. Both principles govern the temporal scope of international law and thus structure broader debates about colonial reparations. They are connected by the stance that time and law coalesce such that the past cannot be judged by current law (non-retroactivity), but must be examined according to contemporaneous law (inter-temporality). This is why scholars sometimes invoke the two principles in one stroke,Footnote ⁵² occasionally without strongly differentiating them from one another.Footnote ⁵³ Both principles have been criticized as politicized tools to avoid reparationsFootnote ⁵⁴ in US-American and European anti-reparation debates,Footnote ⁵⁵ some of which label reparation claims as ‘erroneous demand[s]’Footnote ⁵⁶ for retroactive legal application. Scholars have therefore grappled with both principles for a while, with some taking a cautious stance on the utility of international law to redress colonial violence.Footnote ⁵⁷ German scholarship on the question has also argued that neither principle provides a legal basis for reparations while highlighting that non-retroactivity provides a ‘temporal boundary’ against reparation claims addressed to Germany.Footnote ⁵⁸ At the same time, critical perspectives on the German case have turned more often to the inter-temporal principle.Footnote ⁵⁹ As a result, this essay focuses on non-retroactivity in these debates, because it is less often criticized than the inter-temporal principle, even though it is equally persistently invoked. More specifically, the paper examines deployments of the non-retroactivity of law through theories of political time to argue that an understanding of history as ‘normatively temporalized time’ underlies Germany's chronopolitics of deflection (see the third part of section three).

This strategic use of non-retroactivity arises in Germany's consistent objection to debating colonial reparations in the form of two entwined manoeuvres. The first is the insistence that the concept of genocide is actionable for reparations only if events fall within the Genocide Convention's temporal scope – which in turn is limited by non-retroactivity. This position conflates the political issue of reparations with the temporal applicability of international law, which creates a qualified understanding of the kind of genocide that could yield reparation debates. The second manoeuvre, then, is the foreclosure of the reparations question by means of the non-retroactivity of treaties. Mobilizing this principle hence privileges the stance that the Genocide Convention cannot be applied to events that occurred before 1955, which confers a historical, yet a-legal recognition unto German colonial atrocities. Confining a reparation-relevant understanding of genocide to the realm of international law hence simultaneously forecloses the reparations issue.

The a-legal articulation of German post-colonial responsibilities began a year before Namibia's independence. A 1989 parliamentary petition filed by MPs of the then-governing coalition, titled ‘The Federal Republic of Germany's Special Responsibility for Namibia and all its Citizens’,Footnote ⁶⁰ outlines this ‘special responsibility’ in terms of economic development assistance and human rights policies. Governmental references to this ‘moral and historic’ responsibility (or ‘special historic responsibility’Footnote ⁶¹) have continued to monopolize the commitment to German–Namibian reconciliation. This responsibility is routinely concretized by the volume of development aid payments, which are explicitly distinguished from reparations. This argumentative pattern repeats, for instance, in 2004, on the occasion of the centennial of the German's war of extermination and in the 2021 ‘joint declaration’, which affirms this very position.Footnote ⁶²

The repeated assertion that there are no obligations to pay reparationsFootnote ⁶³ given the lack of any international legal basis for such claimsFootnote ⁶⁴ complements the focus on development aid. At least since 2011, governmental invocations of the non-retroactivity of the Genocide Convention have consistently structured the debate about Germany's accountability for its colonial atrocities. A 2012 minor interpellation noted explicitly that the concept of genocide is a key issue in contentions about Germany's colonial war of annihilation. The interpellation stresses that this debate centred on the contested scope of the Genocide Convention.Footnote ⁶⁵ The government responded reiterating the non-retroactivity of the Convention to confirm the lack of legal obligation for reparations in 2011,Footnote ⁶⁶ 2012,Footnote ⁶⁷ 2016,Footnote ⁶⁸ and 2020.Footnote ⁶⁹ When asked by opposition parties in 2011 and 2012 why the federal government had not officially recognized the genocide of the Ovaherero and Nama, the government responded highlighting the non-retroactivity of the Genocide Convention.Footnote ⁷⁰ The response demonstrates that, at that time, the government reserved the term genocide entirely for its usage according to international criminal law, which rendered it inapplicable to Germany's colonial massacres.

Importantly, this strategy's centrality for foreclosing reparation requests is not diminished by Germany's concession that the atrocities against Ovaherero and Nama qualifies as a historical form of ‘genocide’.Footnote ⁷¹ I submit that Germany's 2015Footnote ⁷² and 2021Footnote ⁷³ announcements that its attacks against the Ovaherero and Nama were ‘genocide’ in an exclusively historicalFootnote ⁷⁴ sense of the term coheres with the argumentative double-movement furnishing the ‘chronopolitics of deflection’. This is so because the recognition of a ‘historical genocide’ comes with the refusal to also attach legalFootnote ⁷⁵ relevance to this designation. Importantly, a 2015 research brief by the Federal Parliament's Research Service emphasizes that ‘the description of past events in the terminology of the Genocide Convention’ does not entail the retroactive application of the Convention's legal consequences.Footnote ⁷⁶ Further, ‘[t]he Genocide Convention does not become applicable pursuant to the deployment of the concept of genocide’.Footnote ⁷⁷ This document is crucial, because it demonstrates that room for the recognition of the ‘historical genocide’ was created by ‘splitting’ it off a legally relevant deployment of the term. In other words, the description of the relevant atrocities as ‘genocide’ does not cast them as a matter of international law, thereby leaving the matter divorced from potential reparations.

The turn towards a ‘historical genocide’ was therefore not as profound a shift for matters of reparations as one might expect. This is so, because the government divorced a historical from a legal meaning of ‘genocide’, thereby evacuating the concept from the realm international law, presented as the only appropriate register for reparation debates. To illustrate, a year after the 2015 announcement of the adoption of the historical term ‘genocide’,Footnote ⁷⁸ the government answered an opposition query noting that the term genocide can be used in a purely historical and thus non-legal manner, because the Genocide Convention's preamble uses the concept in its historical dimension. Notably, this response stressed that the preamble does not create legal obligations for states.Footnote ⁷⁹ Official documents resort to the preamble to defend a non-legal evaluation (‘nicht rechtliche Einschätzung’) of events in a ‘historical–political public debate’ independent of the international legal status of the word.Footnote ⁸⁰ Moreover, the government has refused to specify whether the ‘historical genocide’ prefigured the international crime of ‘genocide’ as codified in the Convention. A 2011 minor interpellation queried whether distinctly genocidal intent, a definitional cornerstone of the 20^th-century international crime,Footnote ⁸¹ drove the massacres. The government responded that it remains neutral on issues pertaining to historical research.Footnote ⁸² It repeated this overall position in 2012.Footnote ⁸³ Although a degree of ambiguity remains as to the precise meaning of a ‘historical genocide’, the 2021 joint declaration's deployment of ‘genocide’ as a historical concept accompanied statements that it would not yield reparations and that the €1.1 billion ‘reconstruction and development’ aid were not reparations.Footnote ⁸⁴ In resorting to a ‘historical’ understanding of genocide, Germany continues to overshadow the reparations issue with development assistance payments. As such, the historical, non-legal use of ‘genocide’ maintains the politics of deflection that separates reparation claims from the arena of international law, to which they are strategically confined in the first place. This deployment of ‘genocide’ ‘in a non-legal sense’ to describe German colonial massacres is notably criticized in E. Tendayi Achiume's 2019 report to the General Assembly.Footnote ⁸⁵ Ovaherero and Nama organizations and a 2023 UN Special Rapporteurs' letter to Germany equally contest this ‘splitting’ of the concept into its historical and legal valence. The latter demands an ‘unqualified recognition of the genocide’ as part of ‘effective reparative measures’.Footnote ⁸⁶

A counterpoint to the German treatment of the concept of genocide emerges in the declaration resulting from the 2001 Durban ‘World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance’ (‘Declaration’Footnote ⁸⁷). The Declaration provides an alternative understanding of the relationship between time, law, and violence. Section 13 articulates a retroactive normative temporality and states that ‘slavery and the slave trade are a crime against humanity and should always have been so’.Footnote ⁸⁸ This statement implies that the historical absence of a crime of slavery is in and of itself wrong.Footnote ⁸⁹

And yet, despite this important claim in the Declaration, Germany's move towards using the notion of ‘genocide’ is symbolically significant, because it transitioned away from a wholesale denial regarding the atrocities in German South West Africa. Yet, overall, this move remains an adaptive, not a transformative, one.Footnote ⁹⁰ As such, it did not undo the politics of deflection tout court.

Deflection between ‘aid’ and (avoidance of retroactive) law

Germany's deflective politics hence persists in the claim that a ‘historical’ genocide does not enable reparations because it does not reach international illegality. This claim merits further substantiation, here provided in two steps. First, my argument on the recognition of a ‘historical’ genocide is pressured further by Germany's provision of development aid payments to Namibia, which probes the purpose of its deflective politics. I therefore here detail the qualitative distinction between development assistance and reparations. Second, I chronicle post-war Germany's reluctant engagement with retroactive (international) law and its resistance to confront its European genocide qua genocide by means of law to contextualize the resort to non-retroactivity and to an a-legal concept of genocide.

As for the first point, Germany's adamant distinction between reparations and development aid exemplifies what Weber and Weber call the ‘normative inversion’, which captures enduring imperial features of the liberal international order. Historically, the ‘normative inversion’ secured the perverse hierarchy between ‘civilized’ perpetrators and ‘savage’ victims of colonial violence. It persists in the assumption of ‘moral authority and political competency’ by formerly colonizing powers as ‘providers of […] rules for the rest’.Footnote ⁹¹ Germany's aid payments exemplify this dynamic. Whereas ‘aid’ emanates from a benevolent provider's moral superiority,Footnote ⁹² ensuring the giver's agency and influence, reparations acknowledge rectificatory obligations.Footnote ⁹³ Focusing on development assistance therefore facilitates the former colonizer's ‘self-absolution’Footnote ⁹⁴ and is liable to re-enact the ‘civilized-barbarian divide’ that underwrote colonial hierarchies.Footnote ⁹⁵ Such monetary transfers may concede the generic wrongness of colonial rule, while suppressing the agency of the descendants of survivors and therefore thwart engagement with the normative and material conundrums specific to such atrocities.

The distinction between reparations and aid thus probes the question of the general and specific aims of Germany's deflective politics. Generally, the fear of setting a precedent via reparations negotiations that may implicate several Western-European governments might solidify Germany's anti-reparation stance.Footnote ⁹⁶ Avoiding litigation to maintain international reputation is also common among states, which is perhaps why Germany invoked the doctrine of state immunity against claims filed by Ovaherero representatives in US-American district court proceedings in 2007. It was also likely no coincidence that the 2015 adoption of the ‘historical’ genocide vocabulary followed an ultimatum by Ovaherero and Nama, announcing further legal action unless the genocide be publicly recognized.Footnote ⁹⁷

The more specific question persists precisely which reputation – or national identity – Germany is trying to manage by distancing its recognition of the ‘historical’ genocide from the realms of international law and reparations. Although Germany no longer reserves the concept for the Holocaust, commemorating the Shoah as the one apocalyptically violent political breakdown in national history remains central to German collective self-understanding.Footnote ⁹⁸ The commitment to the Shoah's exceptional nature arises in the inclination to maintain post-Holocaust reparations as unique.Footnote ⁹⁹ Incorporating colonial atrocities into German reparative politics would not only weaken Germany's minimization of its colonial past as relatively short-lived and thus somewhat insignificant in European comparison, but would also raise vociferously contested questions about longer lineages of German genocidal politics. This is not to say that Germany has not changed its stance regarding its colonial history – evidently it has renounced colonialism along with Nazism.Footnote ¹⁰⁰ But this circumstance does not preclude critiquing the chronopolitics of deflection as an attending characteristic of this renunciation. Put differently, the point here is to probe the strategies that structure this repudiation.

This leads me to my second point. The relevance of these very strategies, namely the reliance on non-retroactivity and the sidestepping of a specifically legal grappling with ‘genocide’, is sharpened when placed in the comparative context of Germany's juridical engagement with Nazi crimes against humanity (CAH) and genocide in Europe after the Holocaust. Despite Germany's staunch commitment to the genocide vocabulary regarding the Holocaust, threads of continuity connect our case with the post-war German legal establishment's objection to retroactive international law and its avoidance of adjudicating genocide qua genocide. Devin Pendas's work contextualizes Germany's reliance on the non-retroactivity of law to manage confrontation with past mass atrocities. Pendas chronicles post-war occupied Germany's reluctance towards Control Council Law No. 10 (CCL10) issued by the Allied Control Council in December 1945.Footnote ¹⁰¹ CCL10 endowed German courts with retroactive jurisdiction over Nazi crimes, including CAH, an international crime newly codified in the London Charter of the Nuremberg Trials. Pendas details the German prioritizing of non-retroactivity as a formalist, rule-of-law stance over the application of CAH as a new crime and vehicle of substantive justice. Some German jurists objected to CAH's retroactive application as a violation of non-retroactivity, whereas others defended ex post facto law based on overriding justice concerns.Footnote ¹⁰² The non-retroactivity of (international) law also supplied Nuremberg's defence lawyers and German lawyers in the 1963–65 Frankfurt Auschwitz TrialFootnote ¹⁰³ with their argument against prosecutors' charges,Footnote ¹⁰⁴ thereby mobilizing the principle as an ‘exculpatory tendenc[y] of the law’.Footnote ¹⁰⁵

Moreover, the reluctance to confront genocide as genocide in a legal register also marked German Nazi trials. From 1951 onwards, German courts dropped prosecutions of CAH and speedily repealed all occupation law, including CCL10. The Frankfurt Auschwitz Trial therefore adjudicated Nazi violence under ‘normal’ German criminal law.Footnote ¹⁰⁶ This trial thus represented the Holocaust not as a systematically state-orchestrated mass extermination, but as a concatenation of murders or homicides motivated by individual defendants' subjective intent.Footnote ¹⁰⁷ The trial juridically disassembled the Holocaust into a series of individualized guilt assessments, thereby avoiding a legal grappling with genocide as such.Footnote ¹⁰⁸

The ambivalent response of the post-war German legal establishment to CCL10's retroactive application of CAH, together with the Auschwitz Trial's juridical dis-articulation of the Holocaust as multiple ‘ordinary’ homicides, indicate a longer German history of prioritizing formalist rule of law arguments over retroactive laws as an expression of substantive justice when addressing past mass atrocities. These findings do not obviate the important symbolics of Germany's recognition of a historical genocide in the context of development aid payments. They do however accentuate the avoidance of articulating Germany's colonial genocide via (new) international legal norms.

Deflective chronopolitics: history as normatively temporalized time

The previous section embedded Germany's insistence on non-retroactivity regarding the reparations issue in a longer history of German resistance to ex post facto law. Deepening the above discussion, this section asks what kind of relationship between time, law, and (in)justice underlies this insistence on non-retroactivity as a strategy of non-judicial legal argument. I argue that Germany's reliance on non-retroactivity and inter-temporality furnishes a politics of time that uses international law's authority to assert a temporal as well as normative distance to its colonial past.Footnote ¹⁰⁹ I suggest that the aforementioned temporal rules provide different avenues for practices of historicization, which captures political efforts to divorce the present from the past in post-conflict politics.Footnote ¹¹⁰ Whereas inter-temporality yields an understanding of history as context, non-retroactivity provides one of history as normatively temporalized time. The first confines colonial atrocities to a distant past, delineated by now odious norms and laws. The second articulates a normative rupture in time that severs the present of potential reparations from the past of horrid violence. The latter thereby produces a ‘now’ that breaks with a normatively ‘other’ past, a break posited as so fundamental that it is unbridgeable by reparation claims.Footnote ¹¹¹ Via Bevernage, I submit that Germany's chronopolitics produces a political ‘present’ by articulating a past that is normatively and temporally distant.Footnote ¹¹² The stylization of non-retroactivity as the bulwark against reparation claims exemplifies Bevernage's argument that any past/present demarcation is a political device that legitimizes the ‘now’ by rendering remote, if not obsolescent, the ‘past’.Footnote ¹¹³ Our case specifically displays the deployment of international law to temporalize time in an explicitly normative register that yields the symbolic production of a bounded present via the authority of ‘nonjudicial legal argument’, as discussed above.Footnote ¹¹⁴

Temporalization, essential to modern Western conceptions of time, refers to the ordering of time as a linear, progressivist succession of events that are either present or past.Footnote ¹¹⁵ The German chronopolitics of deflection deploys the principle of non-retroactivity to posit 1955 as a normative pivoting point that insulates a legal present against an atrocious colonial past. I therefore refer to Germany's articulation of political time via the non-retroactivity of the Genocide Convention as ‘normatively temporalized time’.

The insistence on the Genocide Convention's adoption as a normative demarcation between past and present could be considered as a ‘kairotic’ moment in German history. The intersection between chronotic and kairotic temporality transforms evenly quantifiable time into political time that enables value judgements in international politics.Footnote ¹¹⁶ Such political temporality provides qualitative distinctions between historical epochs distinguished by irreducibly political watershed moments.Footnote ¹¹⁷ By stipulating 1955 as one such transformative moment, the mobilization of non-retroactivity of treaties confines Germany's colonial atrocities to a normatively inaccessible past. The political temporality of German deflection is one of progress so radical to provide a normative rupture in time. Germany's reliance on the Convention's non-retroactivity for debunking reparations claims thus separates a colonial, violent past from a present depicted as juridified, peaceful, and internationalist.

The reliance on non-retroactivity, therefore, provides a mechanism to inscribe historical discontinuity through which ‘events become past’.Footnote ¹¹⁸ Temporal distance, crucial for normatively rendering remote Germany's colonial violence, emerges here not simply from the mere progression of time. Rather, temporal distancing, in Bevernage's words, arises from the performative delineation of the present vis-à-vis the past.Footnote ¹¹⁹ The chronopolitics of deflection hence do not spring from an insistence that too many neutral units of time have passed, but from the creation of a normative timeline structuring the meaning of facts via the non-retroactivity of treaties.

To illustrate, then-President Roman Herzog stated on a 1998 visit to Namibia that ‘too much time ha[d] passed’ for an apology.Footnote ¹²⁰ But the objective amount of time passed since 1908 no longer furnishes German objections to reparations. The debate now hinges on a normative articulation of time. When then-Minister of Foreign Affairs Heiko Maas announced Germany's 2021 recognition of the (historical) genocide, assertions that the atrocities happened ‘too long ago’ had waned. Instead, Maas said that Germany ‘will now officially call these events what they are from today's perspective: a genocide’.Footnote ¹²¹ The qualifier ‘from today's perspective’ gains significance if connected to the normative event of 1955. Accordingly, Maas did not say that ‘these events’ were genocide in an unqualified sense of the term, as the 2023 Special Rapporteurs' letter explicitly demands.Footnote ¹²² Implicit in this statement is the stance that, from ‘previous perspectives’ ‘these events’ were not ‘genocide’ – and are therefore still not genocide in the reparation-relevant sense of the term, a stance consistent with the chronopolitics of deflection.Footnote ¹²³ Put differently, we can comprehend the atrocities' illegality now – but only now. This particular politicization of time orders time by way of the succession of different values,Footnote ¹²⁴ which makes this conflict over history not about ‘what happened’, or how long ago, but about the normative evaluation of ‘what happened’.

In this light, attempted court proceedings against Germany by Ovaherero and Nama representatives undercut this normative ordering of time by insisting precisely on the transtemporal illegality of past atrocities in the here and now.Footnote ¹²⁵ Seen thus, these claims contest the temporalization of time as a linear progression from one normatively self-contained epoch to another. In that sense, attempted litigations can be read as a push for rendering the past normatively coeval with the present. Put differently, such litigious pursuits aim to expose the fragile binary between past and present in legal and therefore normative terms.Footnote ¹²⁶ These attempts become legible through what Hartman calls, in the context of transatlantic slavery, the ‘interminable grief’ arising from historical atrocities that thwart a sense of ‘time as continuity or progression’ such that ‘then and now co-exist’.Footnote ¹²⁷ In challenging non-retroactivity as the legal line dividing past and present, colonial reparation claims locate colonial genocide in a synchronic, rather than diachronic projection of timeFootnote ¹²⁸ that inscribes the ‘presence’ of the past in the present.Footnote ¹²⁹

These litigious efforts articulate the normative contemporaneity of what is ‘genocide’ ‘now’ and what was equally genocide ‘then’.Footnote ¹³⁰ In Charles Mills's words, the Ovaherero and Nama's litigious attempts contest Germany's curation of normative time, in which a ‘time of exploitation, of racial oppression […] is displaced by discrete non-intersecting time whose non-contiguous boundaries preclude […] subversive accounting’.Footnote ¹³¹ In this sense, present day legal action for colonial reparations appears as a mode of such ‘subversive accounting’ that goes against the ‘before and after’ of Germany's 1955 adoption of the Genocide Convention as that which creates ‘discrete non-intersecting time[s]’. From this perspective, Ovaherero and Nama have over many years engaged in ‘chronopolitical contestation’.Footnote ¹³²

International law, time, and redress for colonial injustice

Such ‘chronopolitical contestations’ in response to Germany's strategic mobilization of non-retroactivity show that contentions over reparations for historical injustice continue to be enacted in the register of international law. This circumstance invites broader queries marking the relationship between international law and colonial reparations. One such question is what kind of international legal challenges might apply to the inter-temporal principle and non-retroactivity regarding colonial reparations. This is an expansive question that I can here tackle only within limits. It is most efficiently assessed through debates about these temporal principles governing international law themselves, because they limit the applicability of any substantive branch of international law such as international human rights lawFootnote ¹³³ or the international law of state responsibility.Footnote ¹³⁴ Given the jurisprudential complexity of these debates, the following discussion is aimed not at conclusively discerning which legal argument would formally prevail. Instead, I outline the conundrums befalling inter-temporal law and non-retroactivity to assess the tensions and limitations they harbour for the question of colonial reparations.

To start, some arguments use the inter-temporal principle to submit that Germany's atrocities were already illegal at the time.Footnote ¹³⁵ This position confronts others arguing that these atrocities fell beyond international law altogether. The latter camp argues that German colonial territories were subject to domestic, not international lawFootnote ¹³⁶ and that Ovaherero and Nama lacked subjectivity under contemporaneous international law as non-state ‘uncivilized’ peoples.Footnote ¹³⁷ Arguments defending the international illegality of these atrocities submit that the Ovaherero were sovereign subjects under international law until later stages of Germany's war of extermination.Footnote ¹³⁸ Hence, although Ovaherero and Nama were no signatories to contemporaneous international treaties,Footnote ¹³⁹ such as the first Hague Convention (1899), the principles codified in these treaties ought to have applied to them qua their status as ‘nations’.Footnote ¹⁴⁰ However, the fundamental Eurocentrism of 19^th-century international legal positivismFootnote ¹⁴¹ makes it unlikely that Europeans recognized Ovaherero and Nama as subjects of international legal standing.

And yet, German claims that the atrocities were legalFootnote ¹⁴² also go too far. They certainly violated Article VI of the General Act of the Berlin Conference on West Africa (1885), which required all signatories, including Germany, ‘to watch over the preservation of the native tribes’.Footnote ¹⁴³ But since the General Act primarily created mutual obligations between European colonizers, the question is how descendants of colonial genocide survivors could today render actionable a historical violation of Article VI. It is debated whether Ovaherero and Nama derived subjective claim rights from Article VI at the time and whether their descendants hold such claim rights today – and if so, how they could go about enforcing them. Anderson (Reference Anderson2005) argues that indigenous peoples were third-party beneficiaries of the General Act, meaning they derived entitlements despite not being signatories to it. Several complications attend this claim. Anderson herself highlights mid-20^th-century re-statements of the third-party beneficiary doctrine that limit its reach to states under international law while stipulating that the signatories must clearly intend for third parties to derive rights from a treaty. It is unlikely that European colonizers both recognized Ovaherero and Nama as international legal subjects and intended to confer rights onto them via the General Act.

Even when assuming that such rights were indeed conferred at the time, descendants of now-deceased survivors would encounter multiple barriers when trying to enforce them. The two claims filed by Ovaherero representatives under the Alien Torts Claims Act (ACTA) in US-American district courts illustrate such barriers. The ACTA provides a civil law (tort law) avenue for non-US citizens to sue for international law infringements of certain kinds, thereby opening a litigious avenue that is foreclosed at international courts and tribunals by the Ovaherero and Nama's non-state status.Footnote ¹⁴⁴ The first claim failed because the court held that the plaintiffs had no actionable claim.Footnote ¹⁴⁵ The second claim failed because the appellate court did not consider the plaintiff's claims to warrant an exception to the Foreign Sovereign Immunities Act, meaning Germany could not be sued due to sovereign immunity.Footnote ¹⁴⁶ The latter instance demonstrates that the state-centric nature of international law contains resources through which states can avoid litigation for historical wrongs. As a result, international law not only provides an at best highly contested basis for reparations demands, it also harbours ‘many mechanisms to prevent claims for colonial reparations’, as noted above.Footnote ¹⁴⁷

Three critiques of non-retroactivity offer another approach to evaluate the relationship between international law and colonial redress. The first is specific to the case at hand here, which is that the Genocide Convention renders genocide an international crime engendering individual criminal responsibility. The main defence of non-retroactivity would therefore be nullum crimen, nulla poena sine lege, which aims at protecting individuals against arbitrary punishment.Footnote ¹⁴⁸ Yet, such protection is not even applicable in our case, because all relevant individuals are deceased. At stake is thus not individual criminal responsibility, but instead a form of collective and political responsibility, for which non-retroactivity is considered comparatively weaker.Footnote ¹⁴⁹ Second, some critics argue that non-retroactivity should not cover historical violations of modern-day peremptory norms (jus cogens).Footnote ¹⁵⁰ The Inter-American Court of Human Rights stipulated an exception to non-retroactivity in 1993, noting that no treaty codifying slavery – nowadays a jus cogens violation – should be invoked in international human rights litigation.Footnote ¹⁵¹ Moreover, some municipal legal codes have rendered international crimes, such as CAH and war crimes, retroactive.Footnote ¹⁵² Relatedly, the European Court of Human Rights began only in 2008 to enforce non-retroactivity in appeals contesting earlier municipal retroactive convictions for CAH and war crimes.Footnote ¹⁵³ These examples demonstrate that international tribunals other than the paradigmatic Nuremberg Trials have endorsed the retroactivity of certain key norms. And yet, the International Law Commission has objected to the generalized retroactivity of jus cogens norms.Footnote ¹⁵⁴ A third argument holds that non-retroactivity is significantly weakened, if not overridden, when past laws were manifestly unjustFootnote ¹⁵⁵ and/or subject to contemporaneous moral outrage.Footnote ¹⁵⁶ Such arguments suggest that contemporaneous public denunciations of certain repugnant acts demote the authority of inter-temporality, including non-retroactivity.Footnote ¹⁵⁷

These critiques of non-retroactivity demonstrate that the principle is not sacrosanct. And yet, it remains sufficiently solid a pillar of (international) legality such that it has not predominantly been dislodged in the particular context of reparation claims. This circumstance raises the question of why the principle should prevail, thereby probing its legitimacy. Of course, the purpose of inter-temporal law, and therewith non-retroactivity, is legal stability and predictability, values which hardly allow for a blanket demotion of the principle. However, in the specific context of colonial reparations, the question arises to whom such stability is of value. Endorsing non-retroactivity as a vehicle for legal certainty leaves undisturbed an international law that supplied former colonial powers with argumentative bulwarks against reparation claims, thereby protracting the colonial quality of an international law that was created by colonial powers.Footnote ¹⁵⁸ Secured by non-retroactivity, inter-temporality then freezes past injustice in its place, only to implicitly reiterate it every time the inter-temporal principle is invoked.

From this angle, a difficult choice arises between ‘immunis[ing] historical injustice’Footnote ¹⁵⁹ via non-retroactivity and an ‘ex post facto imposition’Footnote ¹⁶⁰ of law. Judith Shklar's appraisal of the retroactive adjudication of CAH at the Nuremberg Trials, probably the paradigmatic case for political instantiations of non-retroactivity, illuminates the political value of such ‘ex post impositions’ of law. Shklar thought that the retroactive crime of CAH justified the Nuremberg Trials as their moral centre due to its political importance.Footnote ¹⁶¹ She therefore prioritized the legitimacy of the Trials over their compromised legality insofar as they served liberal ends by disseminating legalistic values going forward.Footnote ¹⁶² For her, the crucial point was that law provides ‘a form of political action’.Footnote ¹⁶³ Her question thus was not ‘is law political’, but rather ‘what sort of politics can law maintain and reflect?’.Footnote ¹⁶⁴ Decisive for her was the social and political value of legalistic practices, which for her lay in revealing the expanse of genocidal violence to the Germans.Footnote ¹⁶⁵ Shklar's defence of the retroactivity of CAH therefore arose from her hope that adjudicating this newly codified crime would re-educate Germany's legal elite for a decent and politically liberal future.Footnote ¹⁶⁶ Even though Shklar's hopes for the educative function of retroactivity may not have materialized in West Germany until after the 1960s,Footnote ¹⁶⁷ her argument highlights the political value of prioritizing the political legitimacy of retroactivity over strict legality. While non-retroactivity can serve to silence reparation debates, political discourse could equally well articulate commitments to reparative politics through accepting retroactive law as a vehicle for realizing substantive justice concerns.Footnote ¹⁶⁸ This very nexus between retroactivity and justice indeed surfaced in post-war German defences of CCL10, which held that retroactive law alone could visit proper justice on Nazi atrocities.Footnote ¹⁶⁹ If Germany were to put forth arguments for retroactivity as a ‘form of political action’, it could make use of the distinct normative authority of contemporary legal categories to express the substantive injustice of colonial atrocities in a transtemporal manner.

Yet, Germany's clinging to the non-retroactivity of law as a strategy to avoid reparation debates raises the question as to the persistence of international law's colonial features. Given that no international legal principle has to date conclusively superseded inter-temporality and non-retroactivity, the question of colonial reparations recalls Anghie's statement that ‘the colonial history of international law is concealed even when it is reproduced’.Footnote ¹⁷⁰ Adapting this statement, we might say that – although current international law provides norms that would strictly outlaw Germany's colonial atrocities today – inter-temporality reproduces colonial international law each time the principle is invoked, while non-retroactivity conceals the colonial nature of past international law by creating an exclusively forward-looking normative cut-off point for reparation debates.