Dr Ngarikutuke Tjiriange
I am writing this article as a descendent of the victims of the genocidal crime that was committed by Germany in our country. I also know this issue is highly emotive and must be dealt with carefulness it deserves.
From what I have read, Germany is trying to exonerate itself from the crime of genocide it has committed against the Ovaherero and Nama people in 1904-1908. In order to achieve that, it is dishonestly manipulating the process of negotiations.
No wonder Germany has manipulated the process of negotiations on the massacre of our people by insisting that the negotiations should only be contacted as merely a political but not a legal issue. The Germans know that if the negotiations were to be conducted on a legal basis, the grave breaches of international law would have led to serious legal consequences for Germany.
International law is clear that no state may use any type of measures to coerce another state to secure from such as state advantage of any kind.
Therefore, to try hook or by crooks to manipulate negotiations with another state to put such a state in a situation that can just be as a subordinate of the other should not be allowed.
Germany has the obligation to clearly and honestly accept they committed genocide against the Ovaherero and Nama people and must apologise and pay reparation.
But for Germany to play tricks and try to seriously dilute the genocidal crime they had committed in Namibia as just as historical events, which can be regarded as “genocide from today’s perceptive” – indeed an insult to the victims. By implication that can be understood that Germany is of the opinion that what they did to the Herero and Nama people at that time was not a crime of genocide but it could only be perceived as genocide if it was committed “from today’s perspective”.
Therefore, they believe that since they had not committed genocide, they cannot pay reparations but just generously finance projects. There is a difference between paying reparations and deciding to finance projects for another country.
Financing projects is a charity of the rich to help the poor as an act of generosity, but not reparation, which is money that is paid for damage and injuries caused by the offender to the victim.
Germany is arguing that there was no convention on the genocide at the time it killed and massacred the Ovaherero and Nama people in 1904-1908; therefore, that convention cannot be applied retrospectively. However, I must state very clearly that the convention on Genocide did not create the crime of genocide but has only codified and defined the crime more clearly.
Let me state it briefly that non-retrospectivity of treaties and law is an accepted principle in international law. Therefore, there is a principle of NULLUM CRIMEN SINE LEGE, NULLA PEONS SINE LEGE PRAEVIA (No crime without law, no penalty without previous law).
Under this principle, retrospectivity of the provisions of the law is prohibited. However, if before the treaty comes into force the act committed was already a crime under customary law, international law or national law, nothing will prejudice the punishment of the perpetrator.
It is, indeed, a fact that even in ancient civilisation, before the Convention on Genocide came into being, the war was subjected to legal rules. The slaying of prisoners of war was not allowed.
During the Ottoman Empire, there were even treaties that protected minorities. Customary rules of warfare that protected the civilian population dated back to the ancient civilisation. There were also many conferences that dealt with these issues.
One of these was convened by Prince Bismarck of Germany, which sat from November 1884 to February 1885 in Berlin. Among other things, the conference came out with a decision to preserve the aboriginal races of Africa. Germany was part of most of these conferences and agreements. There is a principle of Customary International Law under which agreements are biding upon Contracting Parties (Pacta Sunt Servanda).
All these were binding on Germany; however, Germany showed no respect to those instruments when it employed or unleashed brutal genocidal war against Ovaherero and Nama people between 1904-1908.
On the contrary, its forces in the so-called German South West Africa acted in contravention of legal norms and principles of the instruments to which Germany was a party and instead annihilated and exterminated the Ovaherero and Nama people intentionally as well as killing Damaras in the process.
Therefore, there are no convincing facts that the killing of the Herero and Nama was not genocide since that killing could not have been regarded in the law of that time, as genocide and can only be regarded as genocide if it was committed “from today’s perspective”.
Contrary to this argument, the Convention of the genocide of 1948 considers legal instruments that existed before the adoption of that convention in 1948.
It is why it was clearly stated in the preamble of that convention that parties had “considered the declaration made by the General Assembly of the United Nations in resolution 96(I), dated 11 December 1946 that genocide is a crime under international law, contrary to spirit and aims of the United Nations and condemned by the civilised world”.
Contracting parties went further by “recognising that ALL PERIOD of history genocide has inflicted great losses on humanity”. In this part, it is stated “all period of history” without mentioning the specific period being referred to. Furthermore, the text of the General Assembly resolution of 1946 states: “The General Assembly, therefore, AFFIRMS that genocide is a crime under international law which the civilised world condemns”.
Article 1 of the Convention of Genocide also “Confirms” that genocide… is a crime under international law they undertake to prevent and punish. In both cases, the words ‘AFFIRM’ and ‘CONFIRM’ are used, which means that in fact, the Contracting Parties were not creating a new crime.
The logical conclusion that can be drawn from the above-mentioned facts is that what happened in the so-called German South West Africa was indeed genocide.
Since Germany was a signatory to many international instruments that criminalised genocide, Germany was under the obligation to protect and respect the rights of the indigenous people of the occupied territories of South West Africa; however, Germany violated the provisions of those international instruments and instead decided to annihilate the indigenous African people, thus committing the first genocide of the twentieth century.
I have tried to raise all these arguments to emphasise the fact that Namibia is not begging for Germany to be generous and help us to develop our country, but Germany has obligations under the international law to accept it has committed serious crimes in our country and it should pay reparations, but not hide under the pretext of the generosity of giving developmental aid to poor Namibians.
Germany does not want this issue to be a legal issue but it is, indeed, a legal issue because it has committed a serious crime of genocide that is punishable under international law.
As much as there is a lot to be said, I conclude here.