Global Policy Forum

By Christof Maletsky

The International Criminal Court (ICC) is considering a submission to hold former President Sam Nujoma and three others accountable for people who went missing under the care of Swapo before and after Independence. The submission to the ICC was made by the National Society for Human Rights (NSHR). It wants Nujoma and three others to be investigated for "instigation, planning, supervision, abetting, aiding, defending and or perpetuating" the disappearances of a number of Namibians. The ICC has confirmed that it received the submission and is weighing the merits of the case.

The Court only came into being in 2002 but the NSHR submitted that the four Namibians be charged under the "continuous violation doctrine" even though some of the crimes were committed before that time. It will be the first time that the ICC's continuous violation doctrine will be tested.

The Dossier

In a dossier, submitted to the ICC in November, the NSHR said Nujoma's continued refusal to reveal the facts about the fate and whereabouts of around 4,200 missing people qualified him to be tried under the "continuous violation doctrine". The rights organisation said Nujoma was the Commander-in-Chief of the People's Liberation Army of Namibia (Plan) during Swapo's liberation struggle, and assumed the responsibility of Commander-in-Chief of the Namibia Defence Force (NDF) after Independence. Also cited in the documents are former Defence Minister Erkki Nghimtina, former Chief of Defence and now retired Lieutenant General Solomon 'Jesus' Hawala, and NDF First Battalion Colonel Thomas Shuuya.

The NSHR told the ICC that one group of missing people were Swapo 'detainees' accused of spying for apartheid South Africa since the early 1970s, while more than 370 Plan fighters were killed during April 1989 and "many other fighters disappeared and remained unaccounted for to date". It said Nujoma was head of Swapo at the time of the disappearances, and that he continues to refuse any investigation into the April 1989 incident "for fear that it might also shed light on the fate and whereabouts of the missing Swapo detainees proper". Swapo security services under Hawala removed hundreds of detainees from dungeons and they were "never to be seen or heard of again to date", the NSHR charges.

The second stage of the alleged "gross violations" under Nujoma covers events in the Kavango Region between 1994 and 1996. At that time, he imposed a state of emergency and ordered security forces to "shoot on sight" anyone crossing or found near the river, according to the NSHR. The forces were under the direct command of Colonel Shuuya and killed at least 35 people, the NSHR said. "The Nujoma administration constantly refused to explain and or investigate the fate and whereabouts of over 1,600 people who either went missing along the Kavango River or disappeared after they were transferred from their areas of habitual residence along the Kavango River and handed over to the Angolan security forces," the NSHR said in its submission.

Caprivi Case

The third case covers the aftermath of the August 2, 1999 armed attack in the Caprivi Region, when Nghimtina was Defence Minister. The NSHR claimed Nujoma told foreign diplomats not to meddle in the country's affairs when they raised concern about alleged grave breaches of human rights. The rights organisation said the ICC "constitutes the only avenue and mechanism available to investigate and ensure the prosecution and punishment" of Nujoma and others for these "international crimes". The Office of the Prosecutor at the ICC informed the NSHR that they "will give consideration" to their submission "in accordance with the provisions of the Rome Statute of the International Criminal Court". "As soon as a decision is reached, we will inform you, in writing, and provide you with reasons for this decision," the ICC responded.