Current reparation demands came about as a demand for redress subsequent to a crime of genocide. Like any other crime genocide has never been, is not now, and will never be inclusive of any group that was not targeted for the said crime.
For a people or victim(s) to establish that they were targeted for extermination, they must first meet the requirements or elements of the crime, that must be met in order to establish the commission of such a crime.
As reparation is a demand for redress flowing from the crime of genocide, to say reparations are inclusive, would be tantamount to saying relatives of perpetrators – who never participated – and relatives of victims of any other crime, like rape and murder, must be included to appear as victims or perpetrators.
This will not hold in any system of law, except perhaps in the so-called kangaroo states, where anarchy reigns supreme and the rule of law is trampled. However, as shall be pointed out here, only four victim groups, namely: ethnic, national, racial, and religious groups qualify to be considered victims of genocide, according to the UN Convention on Prevention and Punishment of Genocide of 1948.
The most interesting and important components of this crime are the objective and the subjective elements. It is against this background that I totally differ with the opinions expressed by my former classmate, Natjirikasorua Tjirera, and former fellow NBC employee Kazembire Zemburuka, that reparations involve an inclusive process.
Their opinion(s) were published on 19 February 2016 and as far as I am concerned their “hypothesis” leaves much to be desired and ought to be challenged, lest they mislead the public.
The UN Convention (Article 2) defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group…”, including: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.
Article 1 of the Convention also confirms that genocide, whether committed in time of peace or war, is a crime under international law, which parties to the Convention undertake “to prevent and to punish”. The objective element of genocide consists of the forms, as enunciated above, which can also be seen as “the surrounding circumstances”.
The most interesting and conclusive element is the subjective element, which deals with the perpetrator. The mental and subjective requirement for genocide as a crime involving intentional criminal liability is provided for in Article 2, paragraph 1 as: “the intent to destroy in whole or in part, a national, ethnic, racial or religious group.”
Genocide is a crime typically based on the depersonalisation of the victim, which makes it a crime wherein the victim is not targeted because of his or her individual qualities or characteristics, but only because he or she is a member of a group.
To claim that the genocide campaign in German South West Africa (GSWA) was indiscriminate and undifferentiated is misleading and farfetched, as shall be shown below.
As pointed out by author J Sarkin (2011), Germany targeted the Herero for genocide, inter alia, to punish the Herero for impudently rebelling against German colonial rule, and for supposedly killing Germans during the uprising in 1904.
This rebellion and the inability to deal with it quickly and effectively dented German prestige, both at home and abroad. Another motive was that the genocide was a means to gain occupancy of Herero land and possession of their livestock, and this was because for a long time Germany had desired more land in its favoured colony, as it wanted to expand the settlement of Germans in GSWA.
The order for genocide was not only meant to deter any Herero survivor from further insurrection, but also to send a message to all communities in GSWA and other colonies that rebellion in any form would not be tolerated. This intention was clearly evident when the Namas dared to rebel and were met with the 1905 extermination order.
One piece of evidence, which does not sit well with the colleagues’s claim that the campaign was indiscriminate, is the presence of Governor Theodor Leutwein who had been living in GSWA for several years before the war. Leutwein, who had established a clear distinction between the various tribes or groupings, had a contrasting approach towards ending the war against the Herero to that of General Lothar van Trotha.
Leutwein’s approach to the war was to defeat the Herero people in one big battle and extend a hand of truce, while von Trotha’s plan was to annihilate the Herero people.
Further evidence that rubbishes the idea that the Germans could not understand nor distinguish between the various groupings derives from the testimony of one of the officers with substantial experience of GSWA, Major Ludwig von Estorff.
At some point Estorff was ordered to pursue the Herero even deeper into the Omaheke. He noted that the pursuit of the Herero “was a policy which was equally gruesome and senseless, adding that “we could have still saved many of them and their rich herds, if we had pardoned and taken them up again. They had been punished enough.”