GERMANY’S EU LAW A DENIAL OF GENOCIDE
By Toivo Ndjebela
Informante
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Dec 18 2008
Namibia
THE legislation proposed by Germany and approved by the European
Union (EU) on 12 April 2007 appears contradictory and even smacks
of hypocrisy.
The law tabled by the Germans would allow prosecution of anyone guilty
of "genocide denial" for questioning war crimes committed in either
Africa or the Balkans during the past 20 years.
The decision to limit the crime of "genocide denial" only to events
that took place during the past 20 years has raised widespread
suspicion.
Furthermore, it is a slap in the face for many who are trying to
address past human rights violations, particularly in Namibia.
Under German-proposed law, people who question Europe’s human rights
violations from 20 years and beyond in Africa and the Balkans could
be jailed for up to three years for "genocide denial".
Even the International Herald Tribune reported just after the approval
of the law that it was notable "for what it omitted".
Most people would consider any law that outlaws "intentional conduct"
that incites violence or hatred against a person’s "race, colour,
religion, descent or ethnic origin" a noble initiative.
The decision to limit the law to the events of the past 20 years
appears to be a disingenuous and cynical attempt by Germany to
indemnify itself against atrocities committed during its colonial rule,
particularly in Namibia.
By imposing the 20-year limit, the Germans avoid the discomfort of
having to embarrass powerful or important neighbours such as Russia
over Stalin’s atrocities in the Baltic countries, or the massacres
of Armenians by Ottoman Turks.
The scope of the law does not cover many specific historical events,
but limits itself to recognising genocides that fall under the
statutes, such as the mass killing of Jews during World War II and
the massacre in Rwanda in 1994.
Above all, justice under the new EU law is highly selective, allowing
the EU to pick and choose what forms of "genocide denial" to outlaw,
leaving wide latitude for applying double standards.
It specifically excludes any justice for Namibia’s Herero and Nama
communities, who demand compensation for the killing of between 35,000
to 105,000 of their ancestors from 1904 to 1908, in the genocide by
German colonial forces in Namibia.
The genocidal killings by German troops drove thousands of Ovaherero
people into exile in Botswana, where many still remain after a
100 years.
In 2001, the Herero became the first ethnic group in Namibia to seek
reparations from Germany for that country’s colonial policies which
fit the definition of genocide.
The case was brought before a US federal court and the reparation
claims were based on the procedures of the Alien Torts Claim Act of
1789. The case is still ongoing, albeit with strong opposition from
the Germans.
International human rights bodies such as Amnesty International,
Human Rights Watch and others have looked into violations of human
rights in the past, and have at times called for justice to be done.
Germany cannot escape scrutiny, and the proposal to have strict
limits on the definition of "genocide denial", while making special
provisions for the economically powerful Jewish community in its own
national laws, is hardly surprising.
The order by German colonial administrator in Namibia, Lothar von
Trotha, for the execution of thousands of Namibians stands out as a
classic example of why Germany would have a slim chance of escaping
any possible prosecution.
There is great condemnation of the envisaged law, not only in Africa
but Europe too. In Europe, Lithuania and Estonia were among the nations
against the proposal. They have pressed hard for the crimes committed
by the Soviet Union under Joseph Stalin to be brought into the scope
of the law.
Most EU member states have resisted the two nations’ stance on the
matter, but a compromise was drawn up last year, to include a political
declaration condemning the mass murders committed under Stalin.
According to the draft proposal "…each (EU) member state shall take
the measures necessary to ensure that the following intentional conduct
is punishable: ‘publicly condoning, denying or grossly trivialising
of crimes of genocide, crimes against humanity and war crimes as
defined in’… the Statute of the ICC."