By Hirukevi Ratauka Kaapama
Amnesty International’s application to join as amicus curiae contains several distinct factors that directly advance the cause of restorative justice, regardless of whether the High Court ultimately rejects or sets aside the Joint Declaration.
Even if the court deems the Joint Declaration (JD) politically unratified and discards the immediate review on procedural grounds, Amnesty’s intervention leaves a lasting impact on the broader push for restorative justice.
Key Contributions to Restorative Justice
1. Codifying the “Right to Reparations” for Colonial-Era Atrocities Amnesty introduces an international law argument centered on Article 144 of the Namibian Constitution, which integrates public international law directly into domestic law.
The Impact: State actors frequently frame payments for historic atrocities as voluntary “development aid” or “moral obligations” rather than legal liabilities. Amnesty’s brief pushes the court—and public record—to classify reparations for genocide as a binding, enforceable legal duty under international human rights law. This shift in framing challenges future bilateral negotiations.
2. Legalizing the Standard for “Free, Prior, and Informed Consent” (FPIC)
Restorative justice requires not just compensation, but procedural justice. Amnesty focuses heavily on the rights of Indigenous peoples the Ovaherero and Nama to participate directly in negotiations that settle claims over their ancestors’ genocide.
The Impact: By filing expert submissions on indigenous consultation rights under regional and international law, Amnesty establishes a clear standard: governments cannot negotiate away the rights of victimized communities over their heads. Even if the current JD dies in parliament or court, future state negotiations will face an established legal baseline demanding direct representation for traditional authorities.
3. Full Settlement Loopholes
Amnesty explicitly targets Paragraph 20 of the Joint Declaration, which purports that the €1.1 billion allocation over 30 years “settles all financial aspects” of the past.
The Impact: Under international human rights frameworks, a state cannot use bi-lateral development aid to extinguish the victimized population’s legal rights to restitution and compensation. Amnesty’s submission formally labels “development assistance” as an inadequate substitute for reparations, creating a legal reference point that prevents future governments from quietly accepting “aid” in exchange for liability waivers.
4. Establishing International Precedent for Global Colonial Reparations
Because this case is monitored by other African, Caribbean, and post-colonial nations seeking reparations, Amnesty’s brief elevates a domestic Namibian case into a global legal benchmark.
The Impact: The legal arguments filed in Windhoek will be cited in future reparations litigation across the Global South. It builds a soft-law record that future international tribunals and national courts can pull from when dealing with historic state-sponsored crimes.
5. Moral and Political Insulation for the Cause
When domestic political parties or traditional authorities fight the state, governments often write off the dispute as local political posturing or opposition rhetoric.
The Impact: Amnesty’s entry as an independent, neutral entity breaks the narrative that this is merely a partisan political disagreement. It validates the claims of the Ovaherero and Nama communities through an objective, human rights framework.
Amnesty’s involvement creates an enduring record. Even if the court declines to rule on the merits because the Joint Declaration is not yet ratified, Amnesty’s brief remains on the record. It provides future negotiators, international lawyers, and affected traditional leaders with an established legal argument: Reparations are a right, participation is mandatory, and development aid is not justice.
Article 144 of the Namibian Constitution serves as the primary gateway for incorporating international law—including human rights instruments—directly into domestic court decisions.
“Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.”
1. Automatic Incorporation
Unlike dualist systems (such as the UK or South Africa) where treaties usually require a separate domestic Act of Parliament to take effect, Article 144 adopts a monist approach.
Treaties and Agreements: Once Namibia ratifies an international convention, its provisions automatically become part of the municipal law of Namibia without needing enabling legislation.
Customary International Law: are incorporated directly into Namibian law.
2. Direct Reliance in Domestic Litigation
Because international law automatically forms part of Namibian law, litigants before the High Court or Supreme Court can directly invoke provisions of international human rights instruments. Courts can rely directly on treaties such as:
The International Covenant on Civil and Political Rights (ICCPR)
The African Charter on Human and Peoples’ Rights (ACHPR)
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
3. Interpretive Aid for Chapter 3 (Fundamental Rights)
Beyond direct application, Namibian judges use Article 144 alongside Article 96(d) (which directs state policy toward respect for international law) to interpret the Bill of Rights in Chapter 3. When the scope of a domestic right is ambiguous, courts look to international human rights jurisprudence to give the right its fullest effect.
How It Operates in Reparations and Human Rights Cases
In cases like the High Court review of the Genocide Joint Declaration:
Bypassing Domestic Silence: Litigants can introduce international law concepts—such as the legal obligation to make full reparations, state liability for historic atrocities, or the procedural right of Indigenous peoples to Free, Prior, and Informed Consent (FPIC)—even if those concepts are not explicitly spelled out in Namibian statutory law.
Standard of Scrutiny: It allows the court to evaluate executive actions such as bilateral agreements against international human rights standards that Namibia has committed to uphold on the global stage.
The principle of non-retroactivity—often anchored in the doctrine of intertemporal law—is the single most significant legal defense former colonial powers use to avoid enforceable liabilities for historical atrocities.
In the context of colonial-era genocide, such as the 1904–1908 Ovaherero and Nama genocide, this legal concept creates a strict separation between modern human rights standards and past actions.
1. The Traditional Legal Barrier (The “Intertemporal Rule”)
The core doctrine of intertemporal law states that a legal act must be judged according to the law in force at the time it was committed, not by modern laws created later.
No Formal Prohibition of “Genocide” in 1904: The UN Genocide Convention was drafted in 1948 and came into force in 1951. Because non-retroactivity dictates that treaties cannot apply to events that occurred before they were written, former colonial Germany argue that the actions of 1904–1908 cannot be classified as a legal genocide under international treaty law at that time.
Exclusion of Indigenous Rights in 19th-Century European Law: European international law in the early 1900s was heavily state-centric and racist. It did not recognize Indigenous populations as full subjects of international law, meaning standard protections against extermination, land theft, and forced labor were not recognized as binding obligations by European powers toward colonized populations.
2. How State Actors Weaponize Non-Retroactivity
By strictly relying on non-retroactivity, former colonizers systematically redirect claims from the legal sphere to the political or moral sphere:
Moral Responsibility vs. Legal Liability: Germany acknowledges the 1904–1908 events as “genocide” from today’s perspective, but maintains that it carries no strict legal liability under international law.
Aid Instead of “Reparations”: Because non-retroactivity shields them from formal “reparations” governments frame financial transfers as voluntary “development assistance,” “grant programs,” or “reconciliation funds”.
3. Modern Legal Counter-Arguments to Bypass Non-Retroactivity
Human rights jurists, Third World Approaches to International Law (TWAIL) scholars, and organizations like Amnesty International push back against rigid non-retroactivity using several established legal arguments:
A. Continuing Violations & Continuing Effects
While the physical killings occurred in 1904–1908, the effects—such as total land expropriation, loss of wealth, generational poverty, and displacement—are ongoing harm. Under international law, a state cannot claim non-retroactivity if the illegal consequences or systemic human rights denials continue into the modern era.
B. Violations of 1904 Customary and Codified Laws
Even without the 1948 Genocide Convention, the extermination orders directly violated international standards that did exist in 1904:
1899 Hague Convention: Prohibited collective punishment and brutal methods of warfare against civilian populations.
Elementary Considerations of Humanity: The Martens Clause (1899 Hague) established that populations remained under the protection of the “laws of humanity” even in uncodified scenarios.
Customary Indigenous Law: Before colonization, indigenous communities possessed customary laws regarding land ownership and human dignity, which colonial powers unilaterally extinguished.
Prohibitions against genocide and mass extermination are recognized as fundamental principles of international law from which no derogation is permitted. Scholars argue that jus cogens violations transcend strict temporal barriers, as crimes of this magnitude cannot be shielded by the formalistic application of dates.
Summary of Impact: The principle of non-retroactivity—often anchored in the doctrine of intertemporal law—is the single most significant legal defense former colonial power Germany use to avoid enforceable liabilities for historical atrocities.
In the context of colonial-era genocide, such as the 1904–1908 Ovaherero and Nama genocide, this legal concept creates a strict separation between modern human rights standards and past actions.
Analysis from Hirukevi Ratauka Kaapama looking from a lens of benefits to be derived from the involvement of Amnesty International as a friend of the Namibian High Court.
Dated: 27th August 2026
