“We will now officially refer to these events as what they are from today’s perspective: Genocide.”
This reference to the Ovaherero/Nama genocide of 1904-1908 (in then German South West Africa, now Namibia) was made by a former German foreign affairs minister and Social Democratic Party (SDP) politician, Heiko Joseph Maas, in May 2021.
An international convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was adopted by the United Nations (UN) General Assembly on 26 November 1968.
It came into force on 11 November 1970 and has 55 state parties. The German Democratic Republic (GDR), former East Germany, acceded to the convention on 27 March 1973.
The convention defines that certain crimes are not subject to any statute of limitations.
This means no matter how much time has lapsed, judicial proceedings can be initiated against the perpetrators of these crimes.
Thus, the statement by Maas on the mass killings of Ovaherero and Namas – “as what they are from today’s perceptive: genocide” – is absurd and hurtful.
The convention defines the crimes to which statutory limitations do not apply. These are war crimes and crimes against humanity, as defined in the Charter of the Nuremberg Tribunal, as well as grave breaches of humanitarian law, as defined by the 1949 Geneva Conventions, as well as the crime of genocide.
Criminal law, on the other hand, sets a time limit for different categories of crimes, after which legal action is stopped and judicial proceedings are no longer possible.
Common law systems don’t usually establish a statute of limitations for serious felonies such as murder, while civil law systems apply extended limits for such felonies for more than 20 years or so.
In the international arena, the non-applicability of statutory limitations pertains to crimes that are extremely difficult to prosecute immediately after they were committed.
This is particularly true of war crimes, crimes against humanity, or genocide.
The non-applicability of statutory limitations prevents the most serious crimes, and those most difficult to prosecute from going unpunished.
The convention provides that no statutory limitation shall apply to the following crimes, irrespective of when they happened:
One: War crimes as defined in the Charter of the International Military Tribunal, Nuremberg of 8 August 1945, and confirmed by UN General Assembly resolutions 3(1) of 13 February 1946 and 95(1) of 11 December 1946 – particularly, the “grave breaches” enumerated in the Geneva Convention of August 1949 for the protection of war victims;
Two: Crimes against humanity, whether committed during war or peace, as defined in the International Military Tribunal charter, and confirmed by the UN resolutions mentioned above; eviction by armed attack or occupation and inhuman acts resulting from apartheid; genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not violate the domestic laws of the country where they were committed.
Genocide was first recognised as a crime under international law by the UN in 1946.
It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
As of April 2022, the convention had been ratified by 53 states.
The International Court of Justice (ICJ) has repeatedly stated that the convention embodies principles that are part of general customary international law.
This means that whether or not states have ratified the Genocide Convention, they are bound by the principle that genocide is a crime prohibited under international law.
The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law and consequently no exemption is allowed.
The same definition of genocide in the Genocide Convention is used in the Rome Statute of the International Criminal Court.
In short, war crimes and crimes against humanity and genocide are prohibited under international law, and are not subject to any statutes of limitations, regardless of whether or not states have ratified the convention.
Further, even if such acts do not violate the domestic law of the country in which they were committed, no derogation is permissible.
The protracted negotiations on Namibia that started in 2015 are fatally flawed.
We sincerely hope this will not one day lead to us to walking the corridors of the International Court of Justice.
- JB Tjivikua, is a descendant of the 1904-1908 genocide victims.
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