By Magreth Nunuhe
SWAKOPMUND – In the early morning of Saturday, 25 March 2017, hundreds of Ovaherero and Nama people clad in traditional attire marched through the coastal resort town of Swakopmund to remember the systematic massacre of their ancestors in concentration camps during the colonial rule.
Singing and breaking into full-throated battle cries, the group sloganeered their demands for reparations for genocide from the current German government, reminded once more of the grim reality that their ancestors endured at the hands of imperial Germany some 113 years ago.
Once inside the graveyard along the banks of Swakop River that snakes through the Namib Desert to the Atlantic Ocean – a sense of finality permeated the hollow reality of death at the sight of thousands of unmarked graves of Namibians who endured hard labour, were senselessly starved and beaten to death.
Just like the Jews’ Holocaust, the majority of Nama and OvaHerero people died from diseases, hunger and violent manslaughter by German troops. This is the reason that brought descendants of the victims to remember the first genocide of the 20th century.
But not only that, the affected communities have been ceaselessly seeking reparations for the atrocities committed by the German imperialists but are also suing the European country for excluding them from current negotiations with the Namibian government concerning the 1904-1908 genocide.
Saturday’s commemoration seemed like the timely moment to find the inspiration to continue their unwavering fight for reparations as their demands got some impetus when on 6 March 2017, the United States Federal Court in New York, where their case has been filed, agreed to hear the class-action lawsuit against the German government.
Festus Muundjua, Ovaherero Genocide Committee patron, related to the audience on what basis the US court decided to hear the case.
Some of the questions raised by the judge were whether the court had jurisdiction to hear such a case, since it was not the first time that the Namibian genocide case had been heard in the US.
According to Muundjua, the American lawyer representing the Namibian genocide committee, Kenneth F McCallion, said that they did not lose the first case, but the case was dismissed on the grounds that it was taken up in the wrong court.
In 2001, members of the Ovaherero community sued the German government and two German companies, the Deutsche Bank and Woermann Line, in the United States seeking reparations for genocide, but the cases were dismissed in June 2004 and April 2006, respectively, for failure to state a valid cause of action.
McCallion pointed to the Alien Tort Claims Act (ATCA) of 1789, which grants jurisdiction to US Federal Courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.
The ATCA allows non-US citizens to charge grave offenders of human rights in a US federal court and as such a case of genocide, crimes against humanity, wars of crime and the crime of aggression can be brought to the federal court of the US.
Muundjua explained that under the US law and under universal jurisdiction, such a court has the right or jurisdiction to hear such a case.
He also mentioned that the other law that can also be used in the lawsuit and could be heard in such a federal court is the Convention on the Prevention and Punishment of the Crime of Genocide, as adopted by the General Assembly of the United Nations (UN) on 9 December 1948.
According to the UN convention, “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world and recognising that all periods of history genocide has inflicted great losses on humanity”.
Based on this, the UN is convinced that “in order to liberate mankind from such an odious scourge, international co-operation is required”.
Muundjua said that the judge also enquired from McCallion if the court had a right to hear such a case when certain countries may not be prosecuted because they enjoy certain privileges and immunities, upon which McCallion responded that under international convention, the law of immunity cannot be used when the case being heard is genocide.
Muundjua also explained that the case can be heard under the Rome Statute of International Law, which has established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.
He said that those crimes cannot be subject to any statute of limitations under the Rome Statute and can therefore be heard regardless of how much time has lapsed since the crime or crimes were committed, especially when it concerns genocide.
In addition, the International Criminal Court (ICC), as authorised by the UN Security Council, can investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves.
The Rome Statute was adopted on 17 July 1998, as a result of multiple attempts at creating a supranational and international tribunal and was enforced on 1 July 2002, “affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”.
Muundjua said that the German government’s representative or lawyer did not show up at court on 6 March 2017, with the German government apparently claiming that they were not served or did not receive any summons.
He narrated that he wrote a letter to their lawyer, McCallion, in New York about the summons to which he (McCallion) replied that summons was served to the Embassy of Germany in Washington DC and the representative of Germany at the United Nations.
Apparently the German Embassy refused twice to accept the summons letter and wanted it sent in registered mail by the Clerk of the US Federal Court.
The clerk seemingly had it delivered to the German Embassy in Washington DC and it was signed for as received.
“We asked the judge what happens if Germany does not come the next time to court (on 21 July 2017).
The judge said that the Hague Convention can be used to file default judgment against Germany,” said Muundjua.
A default judgment is a binding judgment, which is most often in favour of a plaintiff (complainant) when the defendant has not responded to a summons or has failed to appear before a court of law.
According to Muundjua, the US court wrote to the German government that a German representative must be in the court of New York on 21 July 2017 for the hearing of the case.
He stated that another strong point that the complainants have is that some of them are citizens of America and can also take Germany to court for atrocities committed against their parents or forebears, should other laws used in the law suit fail.
Also addressing the audience at the annual commemoration, Utjiua Muinyangue, chairperson of the Ovaherero Genocide Committee said the Ovaherero and Nama people also felt endangered like the Welwitschia mirabilis, a plant that is endemic only to the Namib Desert in Namibia and Angola.
She said that the news about the genocide committed against the Namas and Hereros of Namibia has reached global attention and many have vowed to give reports about it during the opening of the United Nations General Assembly in New York in September 2017.
“We remember Hosea Kutako as the first person to petition the UN for our country to be free. Germans say they won’t talk to ‘little’ people like us,” she said. Kutako was the paramount chief of the Ovaherero and was an early Namibian nationalist leader, who together with British Anglican priest Reverend Michael Scott, submitted numerous petitions to the United Nations during the 1950s and 1960s protesting South African rule over Namibia, leading to the eventual UN recognition of Namibia as a sovereign country.
Muinyangue said that they had quite a busy schedule since the beginning of the year, including a protest march in Berlin, Germany, where more than 300 people joined them.
“Germans – even the young ones – have started to hear our call and are supporting us. We also had talks in France,” she said.
“We are fighting two humongous lions – our own government and the German government.
“Don’t be derailed, let’s be steadfast in our fight for reparations. Victory is ours,” she stressed, saying that there were people who were not sleeping and hell bent on derailing them.
“They are panicking and trying to block our way. But we believe in the spirit of our ancestors. Germans are not going to decide for us in Germany on how reparations will go. They want to start a Namibia-German Foundation. With whom did they decide that? This fight is ours. We started this chapter and we will close this chapter,” she said.