german-foreign-policy.com
Non-Receivable
2017/07/20
WINDHOEK/BERLIN/ROME
(Own report) - The compensation claims brought by descendants of victims of German colonial crimes in the former German South West Africa are threatened to fail, because the authorities in Berlin are obstructing the transfer of court documents. With their class action suit filed in a New York court, representatives of the Ovaherero and Nama peoples in today's Namibia are trying to win compensation for the crimes German colonialists perpetrated against their ancestors - particularly the crime of genocide. The Senator of Justice for the regional government of Berlin, Dirk Behrendt (Green Party), is refusing to transfer court documents his office has received from New York to the German foreign ministry - alleging that the lawsuit is inadmissible. This attempt to obstruct the lawsuit is only the latest in a series with which Berlin for decades has been attempting to silence descendants of the victims of German colonial and war crimes. Germany's main argument that, because Germany enjoys "state immunity" it cannot be sued by private individuals, has recently begun to unravel.
Postponed
A New York court hearing on the compensation claims pursued by representatives of the Ovaherero and Nama peoples scheduled to take place tomorrow must be postponed. The German government as well as the regional Berlin SPD/LEFT/GREEN PARTY senate bears the responsibility.
Obstructed
Last January, Ovaherero and Nama representatives filed a class action suit in the US District Court in Manhattan, to obtain compensation for Germany's colonial crimes, committed by citizens of the German Empire beginning in 1885 in the German colony South West Africa. The suit focuses particularly on the genocide committed against the Ovaherero and Nama peoples by Germans, beginning in 1904. Possibly more than 100.000 had fallen victim to these crimes, according to the plaintiffs in New York. The trial is currently being obstructed by the fact that the defendant - the Federal Republic of Germany, as legal successor of the German Empire - is outright refusing to submit to the court summons. The Senator of Justice of the Berlin regional government, Dirk Behrendt (Green Party) has the responsibility to forward the court documents he has received to the German government. However, he refuses, claiming that states should not be prosecuted "in foreign courts for their sovereign activities, for example, actions carried out by their soldiers."[1] And the German foreign ministry, in turn, claims it cannot send representatives to New York, because it had not received official notification of the trial.[2]
Rebuffed
Because of the Berlin administration's startling stance, the initial court hearing in New York, last March, had to proceed in the absence of the defendant, and tomorrow's subsequent hearing had to be postponed, and is now set for October 13. The Namibian plaintiffs are now trying to transmit the court documents to the German foreign ministry through diplomatic channels. Given the fact that the court responsible for the trial is located in the USA, the plaintiffs expect help from the US State Department in Washington in the hopes that Berlin will not rebuff representatives of a world power as coldly as it has rebuffed descendants of colonized peoples. If the documents can be transmitted, and Berlin still is not sending a representative to New York in October, a motion for "default judgment" could be submitted to prevent the procedure from completely fizzling out, explains Vekuii Rukoro, Paramount Chief of the Ovaherero people.[3] It is unclear, whether this will work out. The German foreign ministry could claim that it can accept court documents only by the prescribed channels through Berlin's regional Senate. If the Senate - currently in the hands of the SPD/THE LEFT/GREEN Party coalition - refuses, the foreign ministry is not authorized to issue directives to its officials.
Commemoration Culture
From a practical point of view, Berlin's current schemes are but the most recent, in a long line of attempts to silence the descendents of the victims of German colonial and war crimes. Regarding the demands resulting from Germany's genocide carried out against the Ovahereros and Nama peoples, the German government had initially simply refused to recognize the crime as genocide. In 2015, the government changed course, to one of attempting to wear down Namibian resistance with cheap and gratuitous pseudo-concessions. Berlin had offered Windhoek meager sums of money - from its "small change" budget - to create a German-Namibian Future Foundation, to promote a - low-cost - common "commemoration culture." Parallel to this, Berlin had declared its readiness to recognize the genocide in a politically moral sense that is not legally binding, provided that the Namibian government foregoes its compensation - not so much in the moral - but in the legal sense of the term. (german-foreign-policy.com reported.[4]) This is how the victims' descendants' claims are to be eliminated once and for all. Contributing to Berlin's decision to change course, is the fact that demands for compensations for Germany's colonial war crimes committed at the beginning of the 20th Century are beginning to be raised also in other countries. One example is Tanzania, where German colonialists killed up to 300,000 people. (german-foreign-policy.com reported.[5])
State Immunity
In terms of contents, the unauthorized allegation - made by Berlin's Minister of Justice, Behrendt - that the Federal Republic of Germany can legally claim state immunity, is internationally much contested. It is true that February 3, 2012, the International Court of Justice, in The Hague, actually recognized "state immunity" for Germany against lawsuits by descendants of Italian and Greek victims of massacres carried out by the Nazi SS and Wehrmacht. However the verdict is very contested among jurists and, in Italy, for example, it is ruled invalid, following Rome's Court of Cassation's verdict declaring that banning individual victims of war crimes and their descendants from legal recourse against the states responsible for those acts, is in full violation of Italy's constitution.[6] New lawsuits have been pending in Italy since, and several verdicts, calling on Germany to meet its compensation responsibilities, have already been rendered. The German government has protested in various verbal notes to Rome, expressing its - curious - expectation that Italy's government will take political measures in Italy to counteract these verdicts.[7] Until now, Rome has done nothing of the sort.
From the Empire to the Present
The German government's "state immunity" plea has served to shield Germany also from recent lawsuits. For example, the lawsuit demanding compensations for the family members of the victims of NATO's air raid, at Varvarin in Yugoslavia, where, May 30, 1999, ten civilians were killed and 30 others injured - some seriously - has been ruled in favor of the German government. Germany based its plea on "state Immunity" mentioned above. A similar ruling was handed down by the Federal Supreme Court October 6, 2016, in the case where, September 4, 2009, more than 100 Afghan civilians were killed on orders of a German Colonel in the Kunduz Massacre.[8] The heavily contested "state immunity" has proven extremely beneficial for soldiers, who committed serious war crimes during the numerous phases of German military expansion - from the period of the Empire up to the present day.
 
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