Nama and Ovaherero traditional leaders, who had turned to the courts in the United States seeking justice and financial reparations over genocide and property seizures by the German colonial government at the turn of the 20th century, were dealt a crushing blow on Wednesday when U.S. District Judge, Laura Taylor Swain, sitting in Manhattan said the Western European country was immune from any claims
The verdict was not well received by Ovaherero Paramount Chief, Vekuii Rukoro, who said Thursday that the decision by Judge Swain to clear the court from hearing the case on account of lack of jurisdiction was disappointing for those committed to justice and fairness for all.
Rukoro said Judge Swain had made some fundamental errors of law in her jurisdictional analysis, adding that they will see to it that this decision is reversed on appeal.
“To this effect, we have directed our lawyers in New York to proceed with immediate effect,” Rukoro said.
“We have a just cause and our resolve is reinforced by the international support our case has enjoyed over the years from international organisations such as the UN and traditional leaders such as Tshekedi Khama of Bamamangwato of present day Botswana, as well as Dr Alfred Xuma the President General of the African National congress, who in 1947 petitioned the UN in support of the Ovaherero case against South Africa’s schemes to annexe South West Africa,” Rukoro further said before appealing for calm from his followers.
“We advise those who are celebrating this short lived victory to settle down, because we have just gone over a hump on the road to success.”
U.S. District Judge Swain said Germany was immune from claims by descendants of the Herero and Nama tribes, depriving her of jurisdiction over its role in what some historians have called the 20th century’s first genocide.
Thousands of Herero and Namas were slaughtered, left to starve or died at concentration camps from 1904 to 1908, when Namibia was still known as South-West Africa, after the tribes rebelled against German rule.
A 1985 United Nations report called the “massacre” of Hereros a genocide, and Germany has in recent years negotiated with the Namibian government over the claims.
The two tribes had argued in court that Germany was not shielded by the federal Foreign Sovereign Immunities Act because some of its plunder found its way to Manhattan, triggering exceptions covering commercial activity and improper “takings.”
They alleged that misappropriated funds were used to buy buildings housing Germany’s consulate general and U.N. mission, while skulls and other human remains were sent to the American Museum of Natural History, and a written account of the genocide went to the New York Public Library.
Swain, however, said the exceptions to sovereign immunity were narrow, and the plaintiffs’ relatively expansive view could subject Germany to liability for holding cultural programs or conducting boiler repairs at its buildings.
She also said the transfers of human remains and the account of the genocide bore no “direct” or “immediate” connection to Germany’s activities in southwestern Africa.
Jeffrey Harris, a lawyer for Germany, in an interview said the decision “should stand up if there is an appeal. It says the very specific requirements that would allow a foreign sovereign such as Germany to be sued in the United States were not met.”
The German foreign ministry said the U.S. court decision reinforces Germany’s position that it is immune from claims by descendants of Namibian tribes under U.S. jurisdiction.
A ministry official, who declined to be named, said discussions with the Namibian government were underway on finding a common position on Germany’s colonial past.
“The talks are advancing constructively and in an atmosphere of mutual respect,” the official said.
Last year, Germany handed over to Namibia skulls and other remains of massacred people used in the colonial era for experiments to push claims of European racial superiority.
Largely ignored for decades, Germany’s colonial history is drawing increasing attention. About three years ago, the German Historical Museum curated a major exhibition on the subject.
Germany, which lost all its colonial territories after World War One, was the third biggest colonial power after Britain and France, which lost theirs after World War Two. – Additional reporting by Reuters