Justice and the Law Collidein Genocide Case

The Retrun of the Ovaherero and Nama genocide case to the Windhoek High Court this week was more than a legal event – it was a moment of remembrance and quiet defiance.

Chiefs, elders and descendants of those who perished under German colonial rule between 1904 and 1908 gathered to witness the latest chapter in their century-long quest for justice.

At the centre of the case is Ovaherero Traditional Authority ombara, professor Mutjinde Katjiua, Landless People’s Movement leader Bernadus Swartbooi and others.

They are seeking to have Germany formally included as a respondent in the Namibian-German reparations matter.

They argue that the atrocities committed by colonial Germany amount to genocide and that Germany, as the colonial power, must answer before a Namibian court.

They also want the 2021 Joint Declaration between Namibia and Germany declared null and void, calling it exclusionary and inadequate.

‘A TRAGIC IRONY’

Yet, as powerful as their moral claim is, the legal path is narrow and steep.

International law shields countries through the principle of sovereign immunity.

This means one country cannot be sued in another’s courts without consent.

Unless Germany voluntarily submits to Namibian jurisdiction – which it won’t – the court’s reach is legally blocked.

A second obstacle is non-retroactivity: the Genocide and Geneva Conventions were adopted decades after the 1904–1908 massacres.

While history recognises them as genocide, the law at that time did not, and modern genocide statutes cannot be applied in retrospect.

The result is a tragic irony: the world acknowledges the horror, but the law is struggling to respond.

The bid to nullify the Joint Declaration also faces hurdles.

Such agreements between sovereign states fall under the executive arm of the government, not the judiciary.

Courts traditionally avoid undoing diplomatic arrangements, even when they appear politically flawed or morally hollow.
 
WHY IT MATTERS

Still, this case matters profoundly.

It forces a nation and the world to confront the gap between legal finality and moral truth.

It demands that reconciliation be rooted in justice, not tokenism.

It restores a voice to those long excluded from official dialogue.

Even if the High Court cannot compel Germany’s appearance, the symbolic power of the case is undeniable.

It keeps the moral pressure alive, challenges complacency, and reminds us that some wounds cannot be healed through silence.

Legal victory may be elusive, but the courage to seek justice – even against impossible odds – is itself a form of triumph.

• Pius Dunaiski is a former Namibian diplomat.

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