Ester Mbathera
There appear to be no obvious legal avenues available to pursue reparations for the 1904-08 Ovaherero-Nama genocide.
This is according to a recent report by the International Human Rights Clinic titled “Restitution, Reconciliation, and Reparations for Namibia.”
The reports highlighted the difficulties in obtaining legal redress for the Ovaherero and Nama genocide, despite the clear classification of the events under both conventional and customary international law.
The report emphasises the need for continued research into potential avenues for achieving restorative justice, both domestically and internationally.
It also calls for further exploration of whether the non-retroactivity of the 1948 Genocide Convention is consistent with broader international law principles.
“One of the most striking features of the Ovaherero-Nama Genocide is how little about it is known outside Namibia. Although the number of victims may have been smaller than those of the Armenian Genocide during World War I, not to mention the Holocaust of the 1940s, the systematic, deliberate, and merciless efforts to eradicate entire populations certainly deserve more attention than it has received around the world.
“We hope that our study and this report will be a small contribution to the needed worldwide understanding of what happened in Namibia during the first decade of the last century. And we encourage others to undertake further research into what happened and how restorative justice may be pursued,” reads the report.
The report calls for increased international efforts to raise awareness and further research into the atrocities committed against the Damara and San peoples during the genocide and in the years following it.
According to the researchers, there is certainly evidence that the systematic abuse of the Damara and San people, albeit perhaps without explicit orders like those to exterminate the Ovaherero and Nama, entitles them as well to claim status as ‘affected communities.’
The report also criticises Namibia and Germany’s Joint Declaration, arguing that it doesn’t meet international standards for indigenous peoples’ rights.
It also points out that the joint declaration violates the U.N. Declaration on the Rights of Indigenous Peoples, as the negotiations did not adequately represent the affected communities.
Article 18 of the declaration states that Indigenous peoples have the right to participate in decision-making on issues affecting their rights, to choose representatives according to their own processes, and to sustain and develop their own decision-making institutions.
“Even if it is true that the affected communities were invited to participate in the Technical Committee, the members of that group were not chosen by the communities themselves, “in accordance with their own procedures,” reads the report.
In their report, the researcher recommended that the German government explicitly acknowledge the events as genocide without qualifiers, reconsider the characterization of financial commitments, focus on restorative justice, increase monetary support, and direct it towards the specific needs of the affected communities.
It was also recommended that the events of the Ovaherero-Nama Genocide be included in German educational curricula and public memorials.
“Public acknowledgement of it, including memorials and plaques in places on German soil where Namibians were imprisoned or where medical experimentation was done, would promote the goal of remembrance. And care should be taken to remove positive public recognition of German perpetrators,” reads the report.
The government of Namibia is advised to enhance the representation of affected communities in negotiations, convene a high-level meeting of all stakeholders to develop a common negotiating position, and consider establishing a Truth and Reconciliation Commission to address historical and ongoing impacts.
“The commission could be tasked with determining not only what happened in the early 20th century but also its continuing impact on contemporary Namibia,” reads the report.
The report recommended that affected communities engage in more constructive dialogue with both governments to achieve a fair and lawful agreement.
“They should be vocal and public in their advocacy for specific uses of grant funds, engaging their own cohorts in determining what is best, and then promoting those ideas to both German and Namibian interlocutors,” reads the report.
