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US court hears case against Germany over Namibia genocide

by Howard Rechavia Taylor

Lawyers for Herero and Nama people and for the German government present argument in lawsuit demanding reparations.

A court in the United States has heard the first oral argumentation between representatives of the Herero and Nama people and representatives of the German government, in a case concerning damages for what has been termed the first genocide of the 20th century.

An estimated 100,000 Ovaherero and Nama people were killed between 1904 and 1908 as a result of a mass extermination policy initiated by German colonial troops in South West Africa, currently known as Namibia, when the territory was a German colony.

US District Judge Laura Taylor Swain on Tuesday presided over the one-hour hearing in New York, where a delegation of 50 Herero and Nama people from around the world joined the plaintiffs in attendance.

“All we are asking for is restorative justice for the genocide,” said Ngondi Kamatuka, a Namibian-born American of Herero descent. “All we want is for there to be a jury who can weigh the preponderance of the evidence.”

The key question under consideration was whether a US federal court has the jurisdiction to hear the case, brought by the indigenous people who seek compensation for their ancestors’ suffering.

In order for there to be a firm basis for jurisdiction in the US under the Foreign Sovereign Immunities Act, the Herero and Nama need to demonstrate that wealth derived from the property taken during the German colonial period has a direct link to commercial property in the US.

Kenneth McCallion, the plaintiffs’ lawyer, argued that a number of German properties in New York were purchased as a direct result of the wealth accrued from slave labour and expropriation of property during the genocide.

He also argued that the sale of genocide victims’ human remains to the American Museum of Natural History (AMNH) demonstrates a valid commercial link between the genocide and American commercial interests.

Germany’s lawyer Jeffrey Harris argued plaintiffs had not sufficiently demonstrated a commercial link. He also said that the presence of skulls at the AMNH was the result of a private donation from German anthropologist Felix von Luschan and not a commercial exchange.

Germany consequently argues that the US does not have jurisdiction to hear the case.

Swain concluded the session by adjourning the case. She will render a decision on whether the US has jurisdiction over the case in the coming weeks, but ha not set a date.

Fight for justice

The descendants of the victims, a diasporic group from at least four countries, have been fighting for restorative justice for generations.

In January 2017, plaintiffs Ovaherero Paramount Chief Vekuii Rukoro, Nama chief Johannes Isaack and head of the Association of the Ovaherero Genocide in the USA Barnabas Veraa Katuuo brought a class action lawsuit against Germany, accusing the state of genocide, theft, and expropriation of property when Namibia was under German colonial rule.

Plaintiffs demand reparations akin to those Jewish Holocaust survivors received after World War II. They also demand a seat at the table during bilateral negotiations between the Namibian and German governments concerning how to reckon with colonial-era atrocities.

This is the second time New York courts have considered the question of reparations for the Herero and Nama genocide. In 2001, the Herero People’s Reparations Corporation filed a civil lawsuit against German corporations. While unsuccessful in court, the Herero and Nama succeeded in sparking a debate that has continued to affect German and Namibian civil society.

Tuesday’s lawsuit goes further, forcing the German state to attend court and explain its position on a genocide it has denied for decades.

Whether Germany now recognises the genocide as a crime under international law is still unclear. While German politicians have acknowledged the genocide in a series of public statements in recent years, the state continues to submit legal documentation to the court that denies that the event constitutes genocide.

“The legal concept of genocide does not apply in this case,” states Germany’s motion to dismiss the case.

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