The debate on genocide is sparking controversies in almost all sectors of Namibian society, to the extent that the word genocide is slowly loosing meaning.
Today, the wholesale indiscriminate massacres of Namibians by successive oppressive colonial regimes are bandied together as acts of genocide. A well-intentioned suggestion was recently made in parliament to group together all massacres, notably the Cassinga massacre and the genocide perpetrated against the Herero and Nama people by the Germans into one national day of remembrance. Everyone ululated when the suggestion was made.
Unfortunately, while the suggestion borders on fostering national unity in remembering the victims of discriminate and indiscriminate massacres of the Namibian people on a specific day, heated debates still ensue as to who were the real victims of genocide.
The Oxford dictionary defines genocide as “the deliberate killing of a large group of people, especially those of a particular ethnic group or nation”. This simple definition dispels the notion that genocide is indiscriminate, and therefore cannot and should not be generalised.
It clearly shows that genocide targets a particular ethnic group or nation, whereas massacres are indiscriminate – targeting all and sundry. This notion does not deny the fact that during the extermination order, specifically aimed at the Herero and Nama, other Namibians were not killed. It is common to have collateral victims during the execution of genocide and massacres.
The international legal definition of the crime of genocide is found in Articles II and III of the 1948 Convention on the Prevention and Punishment of Genocide. Article II describes two elements of the crime of genocide: 1) the subjective element, meaning the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”, and 2) the physical element, which includes five acts described in sections a, b, c, d and e of the Article. A crime must include both elements to qualify as genocide. Article III describes five punishable forms of the crime: genocide; conspiracy, incitement, attempt and complicity.
There are two legal venues in which genocide allegations may be advanced: claims by State X that State Y committed genocide against the nationals of either State X or State Y, or allegations that individuals committed genocide. The former involves suits filed by States at the International Court of Justice in The Hague.
The latter may involve criminal prosecutions before the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), before national courts – as in the recent case in Belgium concerning four individuals convicted of committing genocide in Rwanda – or, in the future, before the International Criminal Court (ICC).
What exactly is holding up the debate on the demand for genocide reparations? Is it a lack of agreement on the definition of genocide? Is it lack of acknowledgement that other (un-intended victims) tribes were equally massacred? Is it about who is going to benefit from the reparations? Or is it simply arrogance?
What is true, however, is that the more Namibians bicker and point fingers at each other, focus is lost on the main target – to ensure that Germany accounts for its extermination orders against the Herero and Nama people.
The genocide reparations debate falls within the ambit of international law and can best be dealt with through the bilateral relations existing between Namibia and Germany. International law is a distinctively legal system of regulating the relations between states.
Non-compliance or breach of agreements, including delays in reaching agreement on a particular issue does not destroy the legal quality of international law. German’s prevarication on reparations flouts and ignores, to a large measure, its international obligations to the victims of its genocide.
The point, however, is that through the ongoing negotiations between the two governments, recognition of German’s observance of international law on the matter has been established. The international legal regime may be described as consisting of a body of laws, rules, legal principles that are based on custom, treaties or legislation and define, control, constrain or affect the rights and duties of states in their relations with each other.
Broadly speaking, international law is a body of rules and customs by which sovereign states are guided in their relations with each other. It is based on the mutual consent of sovereign states. International law is first and foremost the means by which the relations between nations are regulated.
Thus international law on the conduct of international relations between states is very clear. The current negotiations between Namibia and Germany may appear to the affected communities to be vague on a number of things. However, the government is unequivocal that Germany is bound to fulfil its international obligation with regard to paying reparations.
On this score, it is important that we all support government’s efforts to bring closure to this sad episode in our history. We entrusted this government through the ballot to contractually defend and promote our interests domestically and internationally. We, therefore, need to give the government enough room to deal with this matter within that contract and trust.
It is important to note that in international law reparation refers to the process and result of remedying the damage or harm caused by an unlawful act. Among others, the purpose of reparation is to re-establish the situation that existed before the harm occurred; to serve as a vehicle for reconciliation and as a deterrent to a repetition of the same genocide; to restore relations between the violator and the injured parties; and consequently repair or rehabilitate the physical and psychological integrity and dignity of the victims of the genocide.
In international law, a breach of an international obligation gives rise to a duty to repair the harm caused, and this is what the government is trying to make Germany do.
Relations between two sovereign states are directly established between them bilaterally. The resolution of conflicts that arise between them, including reparations for genocide should logically be conducted between their respective government representatives. Other channels or self-interest structures will only serve to delay the resolution process.
* Dr Charles Mubita holds a PhD in International Relations from the University of Southern California.