Genocide: The Identification of A Tragedy

Many of the States that set the foundations for the system of protection of human rights has been characterized by a violent and blood-stained colonial past whose atrocities often tend to resurface in the international debate. These questions are most times paired with the still-ongoing debate on the concept of genocide. The contours of this phenomenon are of central relevance in the establishment and promotion of a human rights paradigm because the historical legacy it delivers could have crucial implications for the present and the future.


Although the term 'genocide' was first coined in 1944 to identify the atrocities committed by the Nazi government, the process of recognition of this concept as a crime under international law found its apex only in 1946. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide further pushed for its institutionalization by codifying the act into legislation. Article 2 of the aforementioned convention establishes that, for an act of persecution to be considered genocide, there needs to be both an intent-related element (mens rea), which refers to the will of the perpetrator to commit such an act, and a physical element (actus reus), which instead refers to the practical process through which the act is put in place. This interpretation of the core content of the legislation is confirmed by the international jurisprudence. In particular, the Appeal of Judgement of the International Criminal Tribunal for the former Yugoslavia (ICTY) of the 30th of January 2015 found that "...the crimes of genocide and conspiracy to commit genocide both require genocidal intent as a part of the mens rea element...(ICTY, 2015). This dualistic interpretation of the concept fundamentally complicates the process of labeling acts of persecution as constitutive of a genocide (Yusuf, A., 2003).



United Nations Office on Genocide Prevention and the Responsibility to Protect . United Nations.


This theoretical impasse did and do still recognize an obstacle in the identification of genocides in international law and of the actions that could come as reparations, constituting a limiting factor to the development of a commonly-shared regime concerning the issue. The systematic eradication of the Herero tribe endorsed by German military forces in the early years of the 1900s, and the subsequent requests for recognition and reparations by the descendants, constitute primary examples of such an issue. This historical case represents a geopolitical battleground and a crucial precedent for international human rights law (McGary, H., 2010).

Namibia, once known as German South-West Africa (GSWA), represented one of the many colonies whose territory was subjected to the control of the German forces during the colonial era. By the beginning of the 1900s, most of the land was acquired by the white settlers and the progressive subjugation of the local tribes was taking place at an increased rate (Sarkin et al., 2008). This general context was further complicated by the German abuses and racist policies that were not only morally condemnable but also did not align with the international commitments taken on by Germany at the time. The conflict reached its apex in 1904 when, following an uprising of Herero against German settlers, the German troops pushed the tribe towards the Omaheke Desert, killing many, forcing others to die either from thirst or water-poisoning and reducing those who survived to inhumane slavery conditions (Cooper, Allan D. 2006).


South-West African campaign. National Army Museum.

Through a process of estimation, out of the approximately 80,000 Hereros, only about 15,000 survived the insurrection and both their lands and properties were redistributed by the German settlers (Harring, S., 2002). According to the modern concept of crimes against humanity, the premeditated reaction to the Herero insurgence could be considered an example of genocide. However, in the process of identifying the phenomenon and setting the foundations for the request for reparations, many theoretical issues emerged and led the debate to a stalling stance. In particular, although the scope of the actions of the German government fit the characteristics outlined in Article 2 of the Genocide Convention, their implications were long contested. This was done according to the fact that, at the time of the massacres, there was fundamentally no international recognition of the crime of genocide as it was specifically institutionalized in 1948.

These arguments, as valid as they might seem from a procedural sense, lack substantive validity. Genocide is considered to be related to the much broader concept of 'crimes against humanity.' The existence of this concept foreruns the German actions in GSWA, finding its roots in legal elements like the Hague Convention of 1899 that had already outlined the possibility of considering humanity a victim of a crime under international law (Meron, T., 2000). Furthermore, the Convention only confirmed the existence of the crime of genocide, underlining how it was considered a crime even before the ratification and the setting of standards for possible retroactive application (Sarkin et al., 2008). The same preamble of the Convention, which states that “in all periods of history genocide has inflicted great losses on humanity”, could be used to support a retroactive interpretation of the legal text, allowing for an acknowledgment of the atrocities committed in the past as proper genocide (Schabas, W.A., 2010).



Stop the Uyghur genocide protest. Unsplash.

In May of 2021, the German government officially recognized the atrocities committed in the early 1900s, fundamentally taking accountability for the losses and the suffering that the Herero people had to endure because of the violence of colonial rule. This particular development came after a widespread campaign of awareness that allowed for the development of a commonly-shared social conscience concerning the issue. Since 2015 Germany has been promoting negotiations with Namibia to attempt to fill the gap that formed between the two executives. The year 2021 represented a fundamental step in the right direction with the awarding of around 1.3 billion dollars to development projects aimed at replenishing the cut between the Namibian people and the German governance.

Although the commitment expressed is admirable, it still presents many issues at both a judicial and political level. Recognizing the occurrence as genocide should have set the foundations for proper reparative action at a legislative plane, but the unwillingness to consider the monetary compensation as reparations - that Berlin preferred to refer to as 'development aids' - represents a much more widespread issue in the political field. Despite persistent calls from civil society and representatives of the Herero tribe, the European nation refused to offer direct reparations to the descendants of the victims of the genocide and omitted the word 'reparations' in the formal agreement. This particular element fundamentally allowed the state to avoid opening a legal avenue for other countries to claim reparations. Formally recognizing the monetary 'aids' as reparations would in fact set a precedent whose scope could have drastic implications globally, allowing for the opening of a legal avenue that many other countries could exploit. If these aids were formally considered reparations, many other ex-colonies could exploit the precedent to move forward for reparation requests. This is the reason why Germany pushed for a different legal interpretation associated with reparations under international human rights law, leaving the issue unresolved from a legalistic point of view.

The scope of the German initiative has been harshly criticized by the representatives of the Herero and Nama. The main source of criticism referred to the fact that the agreement did not contain the entire range of reparations that they believe should be awarded to their people as compensation for the many human rights violations they were subjected to in the past. To guarantee reconciliation it would be necessary to require not only the acknowledgment of past wrongs but also the willingness to work towards inclusion and participation of the descendants of victim groups in the decision-making process regarding how to move forward in the future. The abstract issue of identification, therefore, becomes fundamental in the practical implications of the atrocities committed by the German forces. The labyrinth of procedural questions raised in regard to the topic has shown how, although the literature on the matter is wide, reality often presents facets that require further adaptation and evolution. To identify a concept means to outline its contours, but it is in its factual translation that the analysis takes place, requiring the capacity of the definition to adapt and evolve.


Sources

Article 2, Convention on the Prevention and Punishment of the Crime of Genocide, approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948


Bargueno, D. (2012). “Cash for Genocide? the Politics of Memory in the Herero Case for Reparations.” Holocaust and Genocide Studies 26 (3): 394–96. doi:10.1093/hgs/dcs053


Cooper, Allan D. (2010) “From Slavery to Genocide: The Fallacy of Debt in Reparations Discourse.” Journal of Black Studies 43, no. 2: 107–26. http://www.jstor.org/stable/23215202


Cooper, Allan D. (2006). "Reparations For The Herero Genocide: Defining The Limits Of International Litigation". African Affairs 106 (422)


“General Act of the Conference at Berlin,” Article VI. February 26, 1885. Available from http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/4ENG.htm


McGary, H. (2010). “Reconciliation and reparations” Metaphilosophy 41, no. 4: 546–62. http:// www.jstor.org/stable/24439635


McGreevy, N. (2021). “Germany Acknowledges Genocide in Namibia but Stops Short of Reparations.” Smithsonian Institution. June 4. https://www.smithsonianmag.com/smart-news/germany-acknowledges-genocide-namibia-stops-short-reparations-180977886/


Meron, T. (2000). “The Martens Clause, Principles of Humanity, and Dictates of Public Conscience.” The American Journal of International Law 94, no. 1: 78–89. https://doi.org/10.2307/2555232


Sarkin, J., Fowler, C. (2008). "Reparations For Historical Human Rights Violations: The International And Historical Dimensions Of The Alien Torts Claims Act Genocide Case Of The Herero Of Namibia". Human Rights Review 9 (3)


Harring, S. (2002). ‘German reparations to the Herero nation: An assertion of Herero nationhood in the path of Namibian development’, West Virginia Law Review.


PROSECUTOR V. VUJADIN POPOVIĆ, LJUBIŠA BEARA, DRAGO NIKOLIĆ, RADIVOJE MILETIĆ, VINKO PANDUREVIĆ, PUBLIC, (International Criminal Tribunal for the former Yugoslavia January 1, 2015). Available at: https://cld.irmct.org/assets/filings/Judgement-Popovic-reduced.pdf, Accessed November 5, 2022.


Schabas, William. (2010). Retroactive Application of the Genocide Convention, 4 U. ST. THOMAS J.L. & PUB. POL'Y 36. Available at: https://ir.stthomas.edu/ustjlpp/vol4/iss2/4


Yusuf, Aksar. (2003). The "victimised group" concept in the Genocide Convention and the development of international humanitarian law through the practice of ad hoc tribunals 1, Journal of Genocide Research, 5:2

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Niccolò Fantin

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