The genocide which is the odious scourge and which was committed in the then so-called German South West Africa in the 20th century still haunts us to this day, hence my decision to raise my voice, albeit briefly, to the cry of our people who suffered through this horrendous crime committed in their motherland.
My article also coincides with the week when we gather, once a year, to remember and pay tribute to our people who were in the Hamakari battles against the heartless Germans. I will, however, confine myself to the unfortunate and inconsiderate denial of the Germans who insist that that what they did in our country was not covered by provisions of the Genocide Convention.
I had earlier raised this issue in my book, but I will summarize it for the sake of the people. Von Trotha believed that there was no law which protected the rights of native black people in occupied territories. Furthermore, Germans argue that the Genocide Convention which was adopted in 1948 cannot be applied retrospectively to the events which took place before its adoption. My legal argument on this matter, in brief, is:
It is true that international law generally prohibits retrospective application of treaties. There is indeed a legal principle of NULLUM CRIMEN SINE LEGE, NULLA PEONS SINE LEGE PRAEVIA (no crime without law, no penalty without previous law). Therefore, under this principle, retrospective application of the provisions of the law is prohibited. However, without going into detail, I will say that there are situations under which this principle might not be applied. For example, if before the treaty came into force, the act committed was already a crime under customary law, international or national law, nothing will prejudice the punishment of the perpetrators.
Germany knows very well that long before the adoption of the Convention on Genocide, international law provisions, norms and principles in one way or the other regulated the behaviour of states towards the people of the territories they occupied.
There are many laws, but to mention a few: The concept of JUS AD BELUM – that is the international law regulating justification of war and JUS IN BELLO – the conduct of war, were in existence long before German Imperial power occupied the then South West Africa.
Customary rules of warfare which protected civilian population date back to ancient civilization. During the Ottoman Empire, there were even treaties which protected minorities. In November 1884, Prince Bismarck of Germany convened the Berlin-Congo conference which sat until February 1885. Among other things the Berlin conference came out with the basic decision under which colonial powers solemnly and emphatically undertook to recognise as sacred duty “preserving the aboriginal races of Africa, watch over their interests and promoting the African peoples’ moral and material advancements and development”.
Germany was also one of the countries which participated in the St Petersburg conference of 1869. That conference came out with the declaration which had provisions which were intended to ameliorate and limit human suffering in times of war conflicts. In 1864 there was a conference called by the Swiss Federal Council in Geneva and Germany was present. That conference laid down rules for care of the sick and wounded persons during wars. There was also an anti-slavery conference in Brussels in 1890 and Germany was also represented there. That conference solemnly pledged and resolved that “it was the emphatical desire of the conferring powers to effectively protect the native races of Africa from oppression and slavery”. The Hague convention provides for humane treatment of prisoners of war and civilian population. In terms of the provisions of this convention, the occupying authority is obliged to respect “family honour and rights, the lives of persons, private property as well as religious convictions and practices of the territories they occupy”.
There are many others, but I mentioned only the above. And all these are legal instruments and agreements which are binding upon the contracting parties. The customary international law has a principle of “PACTA SUNT SERVAIVDA” under which agreements are binding upon contracting parties.
Concerning the argument of non-retrospective application of the Convention on Prevention and Punishment of Crimes of Genocide, there are no provisions in the convention which prohibits its retrospective application. In fact, that convention considered legal instruments which existed before its adoption.
The careful reading of Article 1 of that convention states that: “Contracting Parties confirm that Genocide, whether committed in time of peace or war, is a crime under international law which they undertake to prevent and punish.”
Surely contracting parties could not confirm something which was not already in existence. In that sense, the logical conclusion would be that the convention had just codified and defined the crime in a clearer manner.
I have mentioned all these legal instruments to prove my point that Germany has no legal ground on which it can escape from the crime of Genocide it had committed in the then South West Africa. Germany is a signatory to most of these legal instruments, therefore they are binding on that country. The mere fact that the German leaders would not accept that their country had committed Genocide in the then South West Africa does not mean that they did not commit that terrible crime. After all, even a thief who is caught red-handed while stealing, in most cases would say “they say I have stolen”. We are not forcing the Germans to submit to us as they wanted to do to our ancestors in the past in our country, we are merely demanding and will continue to demand that they come to their senses and acknowledge the fact and truth that they murdered our people and they must be held accountable for their heinous crimes, that the wrongs they have done us in the past cannot be corrected by doing us wrong again, they need to do us justice in order to correct their wrongdoings. They have to understand that whether they want it or not, we, the victims of their genocidal war, will always fight and demand restorative justice. The legal and political gimmicks and Machiavellian tricks will only lead to the frustration of the victims of the genocidal war. The Germans are the ones who first expropriated the land, wealth and property of the people of this country. Something that haunts them to this day. People wish to forgive and forget but for that to happen, Germans need to be sensitive and honest. Dishonesty toward us as victims may harm us now, but surely in time the dishonest persons will end up being the victims of their own unacceptable behaviour. Therefore, the German government needs to be serious now and start to earnestly heal the wounds it had inflicted upon us and this can only be accomplished through honest and committed restorative justice.
Dr Ngarikutuke Tjiriange is a former minister of justice