“Justice and the Law Collide in Genocide Case

By Pius Dunaiski

11 October 2025

The [return; ed.] 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 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.

[…]

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.

[…]

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 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.

[…]

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.”

• Full opinion piece “Justice and the Law Collide in Genocide Case” on the website of the Namibian (last checked in October 2025)

• See also the Joint Declaration of the Governments of Germany and Namibia in the ‘Primary Sources’ section of this website