Namibia genocide case in US hits snag as Germany disregard court summons

By Magreth Nunuhe

Windhoek – The German government is allegedly refusing to accept court summons to appear in the United States Federal Court in New York in the class-action lawsuit for crimes against humanity that the Ovaherero and Nama people of Namibia filed against it.

The next hearing is scheduled for 21 July 2017, but the Germans are apparently playing delaying tactics after having already snubbed the first hearing on 6 March 2017, with claims that they were not served with any summons.

The two Namibian communities filed a lawsuit on 5 January 2017, suing Germany for excluding them from current negotiations between the German and Namibian governments concerning the 1904-1908 genocide committed on Namibian soil.

The initiators of the legal challenge are Ovaherero people’s paramount chief Vekuii Rukoro as representative of the Ovaherero Traditional Authority, and chief and chairman of the Nama Traditional Authorities Association, David Frederick, and the Association of the Ovaherero Genocide in the USA.

Genocide committed against the Namibians has reached global attention and many have vowed to give it impetus during the opening of the United Nations General Assembly in New York in September 2017.

“The time is near (for court case on 21 July 2017), but Germany has of yet not responded to the judge in writing, whether they accept the summons or not,” said Festus Muundjua, Ovaherero Genocide Committee patron.

Muundjua added that he learnt from reliable sources in Germany that the government would apparently only accept the summons if they were sent directly by the United States Foreign Ministry to the German Foreign Ministry and not from the federal court.

He said their American-based lawyer, Kenneth F McCallion, would mostly likely ask for a postponement for a later date.

“We are waiting for a letter from our lawyer. It could be that they could also respond closer to the date of the court, but a postponement would also give us longer latitude,” he stressed.

Muundjua maintained that there was no way that the case could be thrown out of court as it concerns genocide and cannot be subject to any statute of limitations under the Rome Statute of International Law.

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”.

Approached for comment from his office in New York, McCallion, who heads a team of civil litigation and estates/trusts attorneys at McCallion & Associates, confirmed that the German government has not yet responded to the summons and the likelihood was that the case would be postponed to another date.

He said that the implications were that Germany was only willing to participate by the diplomatic route (government to government).

Rukoro said that their lawyers would go through other Hague Conventions serviced through the diplomatic channel or foreign service.

He said that since some of the applicants in the case are US nationals, they represent US citizens’ interest and can also take Germany to court for atrocities committed against their parents or forebears.

“Germany is trying to run, but it can’t hide,” Rukoro warned, saying that although their patience was running out, they were in it for the long haul.

A civil society activist in Berlin who did not want his name mentioned said that he has not heard of any discussion about the lawsuit in the German Bundestag.

“There is officially no debate, no discussion. In general, they try not to discuss the issue. The issue is always taken off the agenda,” he said, adding that they have sent questions to government regarding the New York lawsuit, but have not received any answer.

Niema Movassat, Member of the German Federal Parliament said that the Bundestag has until now no official position on the court case.

“As a member of the Bundestag for the LEFT party, I have the following position on the court case: ‘The lawsuit is a political reaction to the exclusion of the Ovaherero and Nama people in the ongoing negotiation process between the German and the Namibian government.

The plaintiffs show that they are not ready to accept the disrespectful behaviour of the German government towards them,” he said.

He further lashed out at the German government, saying that it was embarrassing for the German side, that in a process that is supposed to bring reconciliation, the representatives of the victims must feel obliged to go to a New York court case in order to make perpetrators side listen to them.

Movassat, who is also the Foreman in the Committee on Economic Cooperation and Development in the German Bundestag said that given the circumstances, it was absolutely their (Ovaherero and Nama’s) right to go every way in order to make their claims heard.

“The German government has in the past months and years proven that they are not willing to listen to the representatives of the Ovaherero and Nama people,” he stressed.

As a Member of Parliament, Movassat described the process of negotiations between the Namibian and German government on genocide a failure.

“I think the negotiation process has been a historical chance for reconciliation and restorative justice.

The negotiations wanted to heal wounds, but instead it only opens up new ones,” he stressed.

He ascribed the failures to the German government still behaving “in a colonial and paternalistic way” on the question of reparations.

“We as LEFT say that there has to be a symbolical apology by the German side towards the victims – but also material compensation. Reparations have to be part of the apology.

“And second, the exclusion of the affected communities is a disaster.

It is a shame that the affected communities are excluded from the direct negotiations. If the process wants to have a chance, they must be present at the negotiation table with representatives chosen by themselves and not by the Namibian government,” he pointed out.

The majority of Nama and Ovaherero people died from diseases, hunger and violent manslaughter by German troops during the 1904-1908 war of extermination, in which they also lost their land and cattle.

The two tribes have vowed to continue fighting for restoration in the same way that Germany paid reparations to the Jews of Israel after the Holocaust in the 1940s.

The United States Federal Court in New York has jurisdiction to hear the Namibian genocide case as the Alien Tort Claims Act (ATCA) of 1789 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.

Another 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”.

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.

If Germany does not go to court without a valid reason on 21 July 2017, the judge can use the Hague Convention to file default judgment against Germany.

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.

The Namibian government appointed Dr Zed Ngavirue as the special envoy to head talks with the German government and their special envoy, Ruprecht Polenz, on the genocide issue.

July 2017
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