“States cannot be tried before foreign courts because of their sovereign activity, for example, the actions of their soldiers,” claims Minister of Justice of the state of Berlin, Dirk Behrendt, in his justification not to deliver the U.S. statement of claim to the federal government in the case of a class-action lawsuit against the Federal Republic of Germany by Herero and Nama tribes in New York. According to the colonial historian Jürgen Zimmerer, this argument reveals three realities of Germany’s approach in dealing with the past and the role of civil society actors: first, the German government is not interested in a consensual agreement on reparations; second, international law can only partly help ensure fair treatment of demands for victims of colonialism; third, inequality of power lives on in the international system.
Crimes on a massive scale or genocide are not only domestic or between states, but rather transnational. They violate fundamental principles of human rights and target groups beyond borders, both during the crimes and due to exodus and flight after the crimes have ended. They do not only affect the security of states, but violate human rights, the principle of the equality of people, and the protection of minorities, particularly vulnerable groups which suffer most from these crimes such as genocide. However, in most cases these conflicts are reconciled inter-nationally, which strengthens state actors and excludes parties, most often survivors of these crimes. Nonetheless, civil society actors have shaped Germany’s approaches to dealing with its past beyond postwar national and geopolitical interests which aimed at state-building and Western integration as well as amnesia as a strategy to distance society from the past, which most have been involved in directly or in directly. With the current Herero/Nama case, for another time after the Nazi forced labor cases in the 1990s, Germany’s dealing with its past reveals that—in the long run—the country’s approach fails. Hence transatlantic civil society actors pressure German state authorities to negotiate these reconciliation issues transnationally.
To the present day, survivors of the Holocaust have not been reached by compensation funds for Nazi crimes. Roma people, for instance, who worked in Nazi ghettos do not receive pensions due to continuing discrimination after their liberation. A consensual agreement on reparations, as Zimmerer favors, should at any rate include these victims of Nazi crime. Moreover, financial assistance to victims would show Germany’s unselfish attitude and the country’s will to compensate injustice suffered. Second, historical justice is often a question of power and cannot only be achieved by international law. In most cases, the formerly oppressed are still in the position of the weak, the subaltern. Their protection, thirdly, is an inherent responsibility of the state—as formalized in international law with the Responsibility to Protect (R2P) and of course the national law of Germany and the United States. The protection of minority rights is fundamentally relevant to the credibility of a country’s self-conception as a democracy.
Compensations are only symbolic. However, the request to recognize crimes is most important for both survivors and societies. The fact that the recognition of crimes has to be claimed in the current Herero/Nama case and the Nazi forced labor case shows the importance of civil society interventions. Transnational civil society actors can influence and shape national and international politics, as the charges against Germany from U.S. courts mentioned above illustrate. Civil society can bridge the gaps and may therefore enhance the reputation of a country. At the same time, transatlantic relations are shaped by transnational values such as human rights—values that build up solidarity within the social movements in both West and East Germany fighting for civil rights.
The three obstacles of Germany’s dealing with its own past, mentioned by Zimmerer, can be overcome by civil society actors. The spectrum of their activities should be widened in order to deal with transnational reconciliation issues and to be able to play an active role in formulating demands and claiming participation. A state-funded transatlantic platform may help revitalize relations by strengthening mutual exchange on transnational interests. This alliance would map demographic changes by integrating a variety of actors who do not play a part in the rigid international relations so far. It could echo common challenges such as minority rights and civil rights, transgenerational aspects of remembrance, and trauma when it comes to reconciliation. The platform therefore would counter the feeling of being not involved. This platform would go beyond transatlantic dialogue and could structure a future liberal, transatlantic space. Last, as civil society is under fire worldwide through regulations and limitations on rights, a commitment to the values of a liberal, diverse, society is needed.
Lukas Welz is chairman of AMCHA Germany, an institution that supports the psychosocial aid for Holocaust survivors in Israel. He currently serves as policy advisor in the German Bundestag and works for a NGO in the field of political education for the German multicultural society. He is a participant in AICGS’ project “A German-American Dialogue of the Next Generation: Global Responsibility, Joint Engagement,” sponsored by the Transatlantik-Programm der Bundesrepublik Deutschland aus Mitteln des European Recovery Program (ERP) des Bundesministeriums für Wirtschaft und Energie (BMWi).
The views expressed are those of the author(s) alone. They do not necessarily reflect the views of the American Institute for Contemporary German Studies.
 The Berlin Minister of Justice is responsible to deliver foreign statements of claims to the Federal Government. Herero/Nama genocide victim descendants seek reparations and demand that their representatives be included in negotiations between Germany and Namibia by class-action lawsuit in New York.
 https://www.freitag.de/autoren/der-freitag/das-voelkerrecht-legitimiert-ausbeutung (last view: 25-11-2017).
 The German compensation legislation excluded payments to a large extent to the victims living abroad as well as those not persecuted on the basis of race or for political reasons. Following international agreements have been agreed between states only and did not necessarily reached victims of Nazi crimes.
 It is possible due to the Alien Tort Statute, which allows non-US citizens to make claims before U.S. federal court for international law violations. This instrument was used both in the case of Nazi forced labor and the Herero/Nama cases.