Skip to content

Ovaherero Genocide Foundation

Genocidal Loopholes

Proving Genocidal Intent

Genocide is one of the worst crimes against humanity and considered to be the “crime of crimes”. In the most general terms, genocide is an intentional act to destroy a people in whole or in part. There is a double element to genocide, the requirement of intent to commit the act and intent to destroy the group. Proving genocidal intent can be difficult thus making it even more difficult to prosecute.

The general definition and the definition under the Genocide Convention are different and both can be misinterpreted. There is the also the issue of “in whole or in part”; sometimes people refrain from using the term genocide because they’re ignoring the “in part”. If it fits the broad definition, but not the legal definition under the Genocide Convention, does it make it less punishable of a crime? There is a genocidal loophole that warrants serious consideration and discussion as it eludes to crimes against humanity from being punished and perpetuating the cycle of crime.

If the intent of genocide cannot be proved, a person or people can still be guilty of crimes against humanity or ethnic cleansing. Crimes against humanity are deliberate crimes committed as part of a large-scale attack against civilians, without targeting a specific group. Crimes of humanity include murder, torture, sexual violence, enslavement, persecution, enforced disappearance, etc. Ethnic cleansing is the mass expulsion or killing of members of an unwanted ethnic or religious group in a society. Ethnic cleansing has yet to be recognized as an independent crime under international law, but the term has been applied to mass atrocities such as Bosnia or Rwanda as a way to avoid using the word genocide. Using the term genocide requires intervention under international law.

In the case of Ovaherero and Namas of Namibia, these challenges or loopholes do not arise because first the intention to annihilate and or destroy them “in whole” was pronounced publicly in state Policies (extermination order) read out on October 2nd 1904 at the village of Ozombu-zovindimba by German colonial administrator and troop’s Commander, Lothar von Trotha for the Ovaherero and April 1905 for Namas respectively AND that the two groups were established as ethnic-based autonomous state-like groupings predating the modern Namibian state and thus targeted as such in conformity with the definition element dealing with ethnicism as a basis for singling out a grouping for cleansing.

Avoidance of use of the term Genocide to describe events of such nature

In 1994 Christine Shelley, a spokeswoman for the U.S. State Department, refrained from using the term genocide to describe the violence in Rwanda. She said the United States needed more evidence to see if it met the United Nations definition. Around the same time Molly Williamson, the deputy assistant secretary of defense for Middle East/Africa, also avoided using the term genocide because it could commit the U.S. to doing something.

Over 20 years later in 2016 President Obama, the US first black President, chose not to use the word genocide when referring to the situation in Myanmar. James Silk, a human rights professor at Yale University, said it was because doing so would trigger legal and moral obligations.

In the purported genocide negotiations between the Namibian government and German authorities, Germany flatly refuses to accede to a text calling its acts during the 1904-1907 colonial expedition in early Namibia/then South West Africa genocide. Instead Germany successfully coerced and or cajoled her Namibian counterpart to accept a hugely compromised text speaking superficially to atrocities of that era.

The avoidance of the term genocide shows the correlation between our words and our actions. It shows how much weight words hold because using the term genocide comes with the duty of taking action. Whether the violence in Rwanda, Myanmar, or any other place actually constitutes to the legal definition of genocide or if it fits the general definition, why are we waiting to see if the violence fits a definition first when it’s a clear case of a violation of human rights? How many more people are we going to let get killed and abused before we take action? The atrocities against a group of people, in whole or in part, should be enough for us to actually “do something”.

Rising to the occasion, the 46th US President, Joseph Biden who previously served as Deputy to Barrack Obama and US Senator from Delaware for much of the last 50 years, had just ( April, 2021) stepped up to the challenge and declared the genocide of Armenians under the Ottoman Empire, today most represented by Turkey under the ever-combative long-ruling strongman Recep Tayyip Erdogan, a genocide of the 20th century. Our sincerest hope is that Biden will take this pronouncement forward by following it up with a Bill send to the US Congress for Enactment, rescinding his own country frivolous reservations to the content and application of the UN 1948 Convention on this most heinous crime of genocide and grand that Convention serious chance to stand in the way of those who seeks to cause harm and destruction on others for merely being different to who they are; AND also work towards a Resolution of the UN Security Council to sanction all denialism of this clear cut historical fact. Such precedence will not only give hope to millions of genocide victims denied justice to this day, amongst them are the Ovaherero and Namas of Namibia.

Genocide Convention Protection

After the Holocaust came to an end in 1945 many proclaimed the words, “never again”.

A few years later the UN Genocide Convention was established as a way to legally define genocide, prevent genocide from happening again, protect national, racial, ethnic and religious minorities, to punish those that commit acts of genocide, and to promote basic human rights.

In 2008 the definition for genocide was expanded with Resolution 1820 stating “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide.” As of today 149 nations have ratified the convention giving formal consent and making it officially valid.

But majority of the nations have reservations, understandings, and declarations in regards to different articles of the convention, thus making it difficult to uphold international law. The United States amongst others reserves the right to decide whether, when, and how the Genocide Convention can be applied.

Who is the Genocide Convention really protecting?

Since Ovaherero-Nama genocide by Germany in early Namibia, then South West Africa, followed by the Halocaust which largely was modeled on the Namibian experience, there have been numerous accounts of genocide all over the world. Particularly in the context of the much publicized and thus known Holocaust, the words “never again” have been repeated over and over by the United Nations and various world leaders. How many more years are going to pass before we use the word genocide as boldly as we say, “never again”? People are literally dying in the name of genocide. There are several world leaders and groups within nations that are making efforts to combat genocide, but overall we’re protecting nations from having to intervene and take action instead of protecting basic human rights.

American President Joe Biden have just taken the bold step of calling genocide what it is, let’s just hope that he follows it through and amongst other things rescinds his own country frivolous reservations to the content and application of the UN 1948 Convention on this most heinous crime of genocide and grands it serious chance to stand in the way of those who seeks to cause harm and destruction on others for merely being different to who they are.