Reception Refused

WINDHOEK/BERLIN | | namibia

WINDHOEK/BERLIN (Own report) - Next week's (January 25) scheduled New York trial date in the reparations class action lawsuit for the German genocide carried out on the Ovaherero and the Nama, threatens again to be aborted. The Berlin Senate's Department of Justice continues to refuse receipt of the trial documents, being transferred to the German government, in accordance with international agreements. As confirmed by an internal memorandum, the Department of Justice is only obligated to forward documents concerning civil and commercial conflicts, not indictments concerning genocide, and the German government considers the Ovaherero - Nama lawsuit in violation of its "state immunity." Berlin is also invoking this "state immunity" argument against lawsuits brought by the decedents of victims of massacres committed by the Nazi SS and Wehrmacht in Greece and Italy. This argument has been raised to the level of a universal instrument to ward off prosecution for horrendous war crimes, and is applied even for crimes that were recently committed.

Robbery, Forced Labor and Genocide

On January 25, another court hearing in the current class action lawsuit against Germany for genocide carried out on the Ovaherero and Nama threatens to be again aborted. Because all governments of the Federal Republic of Germany have refused to pay reparations to the decedents of the genocide victims, representatives of the Ovaherero and the Nama brought a class action lawsuit in the Southern District Court of Manhattan on January 5, of last year. The lawsuit claims damages for the numerous crimes Germany had committed in its former German Southwest Africa colony dating back to 1885 - ranging the theft of land and cattle, which destroyed the Ovaherero and the Nama's means of survival, the widespread and systematic rape of women and girls by German colonialists as well as the use of Ovaherero and Nama peoples as forced laborers, culminating in the 1904 genocide. The lawsuit places the number of genocide victims at over 100,000.[1] These German crimes caused not only enormous suffering - but simultaneously, obliterated, with their scathing effects, every possibility for the country's prosperous economic development. The German Empire's terror is also one of the causes of Namibia's current poverty.

Creative Evasive Strategies

Over the years, German authorities have repeatedly devised creative strategies to evade paying compensation - and if possible - lawsuits, all together. One of these strategies is the refusal to apologize for German crimes. An apology, it is reasoned, could be taken as an admission of guilt, and legitimize demands for reparations. In 2004, on the occasion of the genocide's 100th Anniversary, Germany's Minister for Development, at the time, Heidemarie Wieczorek-Zeul asked for "forgiveness of our debts," however, explicitly adding "in the sense of our 'Lord's Prayer'."[2] In 2016, the Reference and Research Service of the German Bundestag concluded in a detailed assessment that reparations demands would have had the best chance of success, if the crimes committed under colonialism were in violation of the existing norms of international law at the time. However, that had not been the case. Therefore the Ovaherero and the Nama can invoke neither the Geneva Conventions of 1864 nor the 1899 Hague Convention on the Laws and Customs of War on Land, because they had not been a party to these treaties - and, because genocide had not been a regular form of warfare under the terms of the Laws and Customs of War on Land.[3]

Acta Iure Imperii

To thwart this latest Ovaherero - Nama lawsuit, Berlin has adopted an alternative strategy, It refuses receipt of the trial documents. Berlin's Social Democrat/Green/Left Party coalition government is involved along with the German national government. Usually the transmission of court documents from abroad is implemented in accordance with the November 15, 1965, "Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters." Its Article 2 stipulates that a "central authority" which will "undertake to receive requests for service coming from other contracting states" for further transmission. The Berlin Senate's Department of Justice assumes this function. However, this administration now maintains that it is not obliged to accept the court documents from New York, because they contain not only the charges of genocide, but of land grabbing, and the imposition of forced labor on the Ovahereros and Nama - which "derive from the execution of the German Empire's sovereignty (acta iure imperii). Therefore, they have neither a civil nor a commercial character, and thus, are not within the Hague Accords scope of application. "For this reason alone, the demand that the April 21, 2017 delivery be admitted is to be rejected," according to an internal memorandum of the Senate's Department of Justice, made available to german-foreign-policy.com.

Not for the First Time

The Senate's Department of Justice is also invoking Article 13 of the Hague Convention, allowing a state to refuse acceptance of documents "if it deems that compliance would violate its sovereignty or security." This applies to the present case, according to the memorandum, because "the content of the class action suit" and "hearings before a US court" violate "Germany's state immunity." It is inadmissible that private individuals sue a state before foreign courts. The Berlin Senate's Department of Justice reminds that already in 2001, it had refused to accept court documents pertaining to the Ovaherero and Nama class action lawsuit, because of Germany's "state immunity." This led to the hearing being aborted.

Internationally Contested

The German government has already invoked “state immunity" to reject compensation law suits by descendants of Italian and Greek victims of massacres carried out by the Nazi SS and Wehrmacht. Berlin had success, because on February 3, 2012, the International Court of Justice in The Hague actually recognized Germany's "state immunity" argument against such law suits. If this legal opinion prevails, victims of pass German state crimes would practically have no other chance of winning compensation. However the verdict is very contested among jurists and, in Italy, for example, it was ruled invalid, following Rome's Court of Cassation's verdict on October 22, 2014. In spite of the German government's protest in various verbal notes to Rome, Italy rendered several other verdicts, calling on Germany to meet its compensation responsibilities.[4]

Instrument Accompanying Expansion

It is uncertain how the New York court will proceed. Court hearings had been aborted already in March, July and October, when Dirk Behrendt (Green Party), the Justice Senator of the Berlin SPD/Left Party and Green Party coalition government, refused to accept the court documents - thereby thwarting the judicial handling of this colonial massacre. The Ovaherero and Nama class action suit is not only very important for Germany facing up to its past colonial massacres, but also for dealing with current and future crimes committed by German military personnel, during their deployments in Asia and Africa. Germany has also invoked "state immunity" against lawsuits demanding compensation for family members of victims in the case of NATO's air attack on the bridge in the Yugoslav town of Varvarin, May 30, 1999, killing 10 civilians, as well as in the case of the Kunduz Massacre ordered by a German Colonel on September 4, 2009, killing more than 100 Afghan civilians. The plaintiffs received no compensation, the perpetrators no punishment. Berlin's "state immunity" argument, which the Ovaherero and Nama are confronting today, has been an instrument accompanying German expansion - from its period of Empire to the present day.

 

[1] Class Action Complaint. Civ. No. 17-0062. New York, January 5, 2017. See also Cheap Commemoration.

[2] See also Déjà vu.

[3] Deutscher Bundestag, Wissenschaftliche Dienste: Der Aufstand der Volksgruppen der Herero und Nama in Deutsch-Südwestafrika (1904-1908). Völkerrechtliche Implikationen und haftungsrechtliche Konsequenzen. WE 2-3000-112/16. Berlin 2016. See also Cheap Commemoration.

[4] See also Non-Receivable.