Leo Kuper once wrote in his seminal text of genocide studies (1981). “The roots of genocide are lost in distant millennia and will remain so unless an ‘archaeology’ of genocide can be developed.” 

From the outcome of the German, Namibia negotiations, which gives the impression to have been concluded on a mere “transgression” by purging the talks of genocide, the determinant elements through agreeing to discount the deed by Germans against the Herero and Nama people of Namibia – as a mere deed without consequences at the time. 

The legal anchor Namibian negotiators had for the negotiation was the existence of the extermination orders, which were directed on two distinct groups at the time – the Nama and Herero. 

These orders are amplified by the clear coordinated plans of different actions that were aimed at the demolition of essential foundations of life of the two groups, and others who suffered collateral damage in the process. 

For the past six years, the German and Namibian governments were discussing whether or not the German government will accept what its soldiers did during 1904 to 1908 against the indigenous two groups, was indeed genocide, and therefore warrants apology and restitution, or not? The German government consistently denied their actions be equated to genocide but likened it to “wrongdoing”. 

They apparently only committed atrocity, without the intention of annihilating the groups! The extermination plan and actions included disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Which by (Raphael Lemkin 1900 – 59) definitions falls within the ambit of genocide.

The reality of the matter is that genocide is generally directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the particular group. Territorial integrity at the time was characterised by ethnic concentration and therefore, the concentration of groups was widespread. 

The extermination orders by German military generals were therefore also specific in terms of the geographic and concentration area of groups. It is this specificity of the geographic concentration of groups and the orders and actions by the German military generals, which underscores the legal validity for the claim of genocide and restitution!

Namibian negotiators

For reasons not known to the Namibian nation in general, and the victim communities, in particular; Namibia’s negotiators increasingly deserted the legal basis for the negotiations which provided the “locus standi” and identified actual disagreements involving rights which are legally demandable and enforceable.  The choice by Namibian negotiators to abandon this position should be seen in the context of the double standard approach applied throughout the negotiation process done in collusion with the German government because it works like a two-edged sword to the benefit of the two. 

At worse, it precludes legitimate leaders of the victim communities because they are considered a legal obstruction. And at best, it provides room for the creation of symbiotic relations, to exonerate the Germans from the historical guilt, and forcing the discussion down the bilateral route, which gives the Namibian government complete control over the process for an apology and the managing of the resource for restitution!

The big lie 

First and foremost, the Namibian government shamelessly lied about the representative validity and the openness of the special committee of negotiators. The terms of the committee are interspersed with restrictive conditions that made it impossible for any reasonable leader to participate under such conditions. 

The so-called community leaders hurled together in the committee are individuals with political affinity to the ruling party and they do not represent the interest of the victim communities but of the ruling party. 

The reasons why the negotiations could not bring forth clear resolve about the dignity of the decedents of victim communities is a deficiency caused by lack of representative originality and legitimacy. Calling for infrastructure development projects, like in the views of the ruling party leaders and its makeshift community leaders, without direct relationship for systematic restitution of victim communities, is a lie and betrayal of the Nama and Herero descendants whose problems cannot be addressed outside the legal understanding of restitution ad integrum - restoration to original condition. This is one of the primary guiding principles behind the awarding of damages in common law negligence claims, which also refers to a means of redress available to an applicant.

The difference between us and them

The Herero and Nama victim communities cannot afford to abandon the above position because any other position will weaken the claim substantially. It means, as long as we hold on to this principle of international law, the Namibian and German governments can do whatever they like to do, to negate the associable legal privilege offered by it for their own benefit. But for us, we have to stay the course no matter the position of the Namibian government, because we can then also take our own government to court if they persist in wrongdoing!