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ICC MUST INVESTIGATE NAMIBIAN BREACHES
|November 27, 2006
| Nov 2006: ICC MUST INVESTIGATE NAMIBIAN BREACHES
Posted by: nshr on Nov 27, 2006 - 07:24 AM
November 26 2006
As a human rights monitoring and advocacy organization in Namibia, one of whose four principal objectives is to promote inter alia the principles of democracy, the rule of law and justice for all, National Society for Human Rights (NSHR) recommends that, given the civil and political situation prevailing in the country, the International Criminal Court (ICC) should initiate an investigation ratione personae against former Namibian President and current SWAPO Party President Mr. Sam Nujoma, former Deputy Commander of the People’s Liberation Army of Namibia (PLAN) and former Chief of the Namibian Defense Force (NDF) Lieutenant General Solomon Dumeni “Jesus” Hawala, then Commander of the 1st Battalion of the Namibian Defense Force (NDF) Colonel Thomas Shuuya and former Defense Minister Erkki Nghimtina for their respective command responsibility vis-ŕ-vis the perpetration of systematic, persistent, widespread and grave breaches of established principles of international human rights and humanitarian law.
A formal brief on the said breaches for the attention of the Office of Prosecutor of the ICC at The Hague is being finalized for that purpose.
The violations in question, which have been committed with impunity, include but are not limited to arbitrary or summary executions, torture and other cruel, inhuman or degrading treatment (CIDT) or punishment, unlawful deportation and or forcible transfer of population, recruitment of child soldiers and mercenaries, illegal prolonged detention without trial, enforced disappearances and refoulement.
Those well-documented violations took place in three main stages inside and outside the territory of Namibia before and after independence on March 21 1990:
1. The first stage occurred between 1966 and 1990, both inside and outside the country, resulting in, inter alia, murder, illegal prolonged detention without trial, systematic torture and enforced disappearances of at least 4 000 SWAPO members accused of spying for apartheid South Africa as well as the killings of over 300 PLAN fighters. The PLAN victims were part of a 2 000-strong armed force, which Mr. Nujoma has ordered to enter the country on or around April 1 1989 in a blatant violation of a 1988 UN-sponsored peace agreement on Namibian independence. Mr. Nujoma blames the killings of the more than 300 PLAN fighters on inter alia former UN Special Representative for Namibia, Martti Ahtisaari.
In November 1989 evidence was produced in the Namibian Supreme Court that Nujoma was unlawfully holding outside the country 5 of the more than 4 000 ‘missing persons’. The Court ordered for their immediate release. However, this order was never complied with. On May 6 1997, the UN Committee against Torture (UNCAT) expressed concern about the enforced disappearances of the said SWAPO members and recommended to the Nujoma Administration that a prompt and impartial investigation should be conducted, victims should be compensated and perpetrators be brought to justice. The UNCAT recommendation also fell on deaf ear.
2. The second stage of gross violations took place inside the country between 1994 and 1996 in the Kavango Region after Mr. Nujoma, in a verbal decree issued on September 29 1994, and imposed a de facto state of emergency along the Okavango River. As the Commander-in-Chief of NDF Nujoma ordered Namibian security forces to “shoot on sight” anyone crossing or found near the river. As the consequence, NDF and other forces killed at least 35 people along the Okavango River. Many other civilians were forcibly handed over to Angolan government security forces despite the real possibility that they would be subject to inter alia torture and CIDT.
3. The third phase of grave breaches occurred from 1998 onwards in the Ohangwena, Kavango and Caprivi Regions of the country, leading to gross violations of human rights along the northwestern, northern and northeastern border of the country. Systematic acts of murder, torture and CIDT, enforced disappearances, recruitment of child soldiers and mercenaries, forcible transfer of people, refoulement and a campaign of night-time armed pillage as well as the planting of anti-personnel mines ensued immediately after the arrival in Namibia of Angolan armed forces during December 1999. During this period there was an extensive campaign of recruitment and use of child soldiers and mercenaries in the Kavango Region.
Following an armed attack on August 2 1999 in the volatile Caprivi Region, Mr. Nujoma declared a formal state of emergency. The situation was used to round up and persecute over 300 people, most of who were subjected to systematic torture and CIDT. The overwhelming majority of the victims were members of the Mafwe tribe. Under pressure from inter alia NSHR, on or around August 11 1999 then Defense Minister Erkki Nghimtina admitted that NDF soldiers have made “mistakes”. Nevertheless, Mr. Nghimtina failed to bring the perpetrators to book. Hence, the violations continued unabatedly.
When the heads of diplomatic missions and other international organizations accredited to Namibia used the established diplomatic channels to voice concerns to Nujoma’s Administration over the grave breaches in the Caprivi Region, they were angrily told to “stop interfering in the country’s internal affairs” and that their concerns were described as “inconsistent” with Article 41 of the 1961 Vienna Convention on Diplomatic Relations.
Referring to the third phase breaches, the UN Human Rights Committee on July 30 2004 regretted the fact that "no extensive fact-finding initiatives have been undertaken accounting for alleged acts of torture, extra-judicial killings and disappearances”.
The above breaches have been perpetrated, and some of them continue to be committed, with impunity by virtually same people after Mr. Nujoma’s refusal to heed both national and international calls for the removal from office of senior officials implicated in their commission or omission.
It must be pointed out that the aforementioned gross violations took place in spite of them being strictly prohibited in terms of inter alia the relevant provisions of the Universal Declaration of Human Rights of 1948, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the Geneva Conventions of 1949 and the two Protocols Additional thereto of 1977, the Convention Relating to the Status of Refugees of 1951, the International Covenant on Civil and Political Rights of 1966, the African Charter on Human and Peoples’ Rights of 1981, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1987, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction of 1997 and the Rome Statute of the International Criminal Court of 1998.
NSHR is mindful that most of these breaches occurred before July 1 2002, when the International Criminal Court (ICC) came into force and before June 25 2002 when the Rome Statute came into force in respect of Namibia. However, due to systematic, persistent, vigorous and defiant refusal and or failure by Mr. Nujoma to reveal and or explain the circumstances under which enforced disappearances have occurred, a large number of relatives of ‘missing persons’ continue, even at this moment, to suffer from psychological torture. Moreover, according to well-established statutory, common and case law norms of international human rights and humanitarian law, enforced disappearances “shall be considered as continuing offences as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified.”
Not only is Mr. Nujoma categorically opposed to revealing the facts about the fate and whereabouts of the ‘missing persons’, but also he has totally rejected reasonable national and international calls for accountability and or the establishment of a truth and reconciliation commission for Namibia. Hence, at least some of the said breaches are blazing.
However, owing to the constitutional and legal immunity Nujoma might be currently enjoying as former Namibian head of state and current Founding Father of the Namibian Nation as well as the enormous political and economic influence he has as President of the ruling SWAPO Party, and, further, owing to the fact that the State is unwilling or unable to initiate investigations against Mr. Nujoma and others, there is no foreseeable hope or possibility that the aforementioned international crimes will be investigated by Namibian authorities in an effective, prompt and impartial manner. This state of affairs inter alia makes it impossible for inter alia the relatives to find the answers on the whereabouts of those “disappeared” and to obtain justice, reparation and guarantees of non-repetition.
In light of the aforementioned, NSHR has reasonable cause to believe that, as the former Commander-in-Chief of PLAN and also of the NDF, Mr. Nujoma either knew or, owing to the circumstances at the time, should have known that his subordinates as mentioned above were committing or were about to commit such crimes but has done nothing to stop them. Hence, the ICC should investigate Mr. Nujoma and others mentioned above ratione personae in accordance with inter alia Articles 25, 27 and 28(a) of the Rome Statute for the commanding role they played in the instigation, planning, supervision, abetting, aiding or defending in the execution of the aforementioned crimes.
NSHR believes firmly that, in the absence of a genuine and legitimate national truth and reconciliation process, the Namibian people would have a little, if any, success in achieving the sine qua non transition, from the very painful past, to real democracy, respect for the rule of law and justice for all. Hence, an ICC-driven due process could be the only avenue available to end impunity and ensure accountability in the country.
The above having been said, it must be abundantly pointed out that, by having decided to take this course of action, NSHR should not be viewed in anyway, whatsoever, as attacking the SWAPO Party and or PLAN as a whole or rejecting the crucial role the two institutions have played in the struggle for the realization of the right of the Namibian people to self-determination and nationhood. Nor should this statement be viewed in anyway, whatsoever, as the explicit or implicit denial and or minimization of the important role Mr. Nujoma et al have played in the said struggle.
However, a very clear distinction ought to be made between the positive leading role Mr. Nujoma has played in the struggle for Namibia’s national independence—a just cause--on the one hand, and the grave breaches of customary international law, which are both mala prohibita and mala in se, on the other hand. As a responsible human rights organization, NSHR sincerely believes that in spite of the affirmative things, there is prima facie corpus delicti that grave breaches of customary international law had been committed. The international community should not brook that impunity.
Furthermore, by having joined other national and international human rights organizations in calling for charges of genocide, war crimes and or crimes against humanity to be brought against inter alios Sudanese President Omar Bashir, Zimbabwean President Robert Mugabe, former Chilean President Augusto Pinochet, former Liberian President Charles Taylor, former Chadian President Hissene Habre, the late former South African President PW Botha, current Rwandan President Paul Kagame and former US Secretary of Defense Donald Rumsfeld, NSHR would have committed a serious inequity to leave out Namibians held responsible for gross human rights violations.
Note: In case of further enquiries please call: Phil ya Nangoloh or Dorkas Phillemon at Tel: +264 61 253 447 or +264 61 236 183 (office hours) or Mobile: +264 811 299 886 or E-mail: email@example.com or visit us at: www.nshr.org.na
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