Why and how Herero-Nama genocide submission is dead letter

On November 16 2021 on page 3 The Namibian newspaper published a report saying that OvaHerero Traditional Authority (OTA) and Nama Traditional Leaders Association (NTLA) have lodged a complaint with the 47-member UN Human Rights Council (HRC).

According to The Namibian, the complaint charges Germany with violating the rights of genocide victims to self-determination and to participate directly in negotiations for reparations in respect of the 1904-1908 genocide.

German defence forces committed that mass atrocity against members of the Nama and Herero ethnic groups.

DEAD LETTER

With all due respect and deference to the descendants of direct victims of the said genocide, their HRC submission is effectively a dead letter for various legal reasons, including:

First of all, HRC does not have coercive powers. Rather, HRC is, so to say, a persuasive inter-governmental body within UN system whose mandate is strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on said situations.

This furthermore means that HRC can only be effective in promoting human rights if it constructively engages states on their identified priorities and challenges based on specific national situations. Secondly, Article 2 (7) of UN Charter specifically and expressly prohibits UN interventions in matters which essentially lie within the domestic jurisdiction of any State, the only exception being the application of enforcement measures under Chapter VII of UN Charter relating to maintenance of international peace and security.

Thirdly, all states are also strictly prohibited from interference in the domestic affairs of any other states.

This prohibition is effected in terms of inter alia Article 2(4) of UN Charter, UN Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (i.e. UN General Assembly Resolution 2625 (XXV) of 1970 and Declaration on the Inadmissibility of Intervention and Interference in the Domestic Affairs of States (i.e. UNGA resolution 2131 (XX) 1965) as well as UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (i.e. UNGA resolution 1514 (XV) of 1960.

The doctrine of non-intervention or interference in the internal affairs of States signifies that a State should not otherwise intervene in a dictatorial way in the internal affairs of other States. The International Court of Justice (ICJ) also reaffirmed this doctrine in its Nicaragua case of 1986 on “[t]he element of coercion, which defines, and indeed forms the very essence of, prohibited intervention”.

Fourthly, the principle of non-interference in domestic affairs of states also finds roots in the common law doctrine of acts jure imperii, which are acts of a sovereign nature and are subjected to immunity.

INTERNATIONAL LAW

In terms of those peremptory principles of international law, which have assumed the character of jus cogens (compelling international law), there is simply no UN body or a UN member state which can compel the German or Namibian governments to include OTA and or NTLA representatives on their genocide reparation teams.

The above also means that OTA and NTLA cannot take Germany or Namibia to any foreign courts in order for such court to compel Germany or Namibia to include them on their negotiations teams relating to said genocide.

OTA and NTLA also cannot take Germany or Namibia to ICJ for two main reasons: one, ICJ is an exclusive judicial forum of states, and, second, ICJ judgments are advisory in nature based on the common law doctrine of ex aequoet bono. Please see Article 38(2) of ICJ Statute.

The only other international judicial forum left is feared International Criminal Court (ICC). As non-state actors OTA and NTLA can take individual Germany and or Namibian government representative to ICC.

However, doing so will be a very tall order because ICC will not have jurisdiction to entertain OTA and NTLA case ratione temporis (Article 11 of ICC Statue) and ratione personae (Articles 24, 25, 27 and 28 of ICC Statute).

That, firstly, means that because Herero-Nama genocide took place between 1904 and 1908 the OTA-NTLA case will be dead on arrival save perhaps if the two groups demonstrate that genocide is ongoing in terms of the continuing violation doctrine.

Secondly, those German government representatives such as Kaiser Willem and or General Lothar von Trotha had since passed on.

So I hope that one can clearly see how and why the Herero-Nama HRC complaint is a dead letter, a non-starter and dead on upon arrival.

Phil ya Nangoloh is a Namibian human rights practitioner