Germany's Colonial Arrogance

BERLIN/WINDHOEK (Own report) - Berlin is forced to change its strategy in its efforts to ward off reparations demands for the genocide Germany carried out on the Ovaherero and Nama. Until now, the German government has simply refused to appear in court in New York for the class action lawsuit that had been opened in January 2017 and has refused to receive the court documents, in the hopes of causing a mistrial. It has finally decided to send a representative to the court hearings, not because of the massive protest by the victims' heirs, but because of a political intervention by the US embassy in Berlin, which no longer wanted to tolerate this brazen contempt of a US court. The German government however insists that it does not recognize the legitimacy of the New York court case - because of its claim of an alleged "state immunity." The victims' heirs have been considering occupation of the land that had once been robbed from the Ovaherero and Nama and is still owned by the heirs of German colonialists.

Reception Refused

Things are finally beginning to move in the class action suit filed by representatives of the Ovaherero and Nama in a New York court demanding indemnities for Germany's colonial crimes committed against their ancestors. For a year now, the German government had tried to evade the trial, which opened on January 5, 2017, by a consistent obstructionist policy. Thanks to the Justice Senator of the Berlin SPD-Left-Green Party coalition, the German government has claimed it could not send a representative to the New York court hearings, because it had no knowledge of the lawsuit. According to international agreements, Berlin's Justice Senator is formally charged with receiving court documents from the USA, for further transmission to the German federal government. Hiding behind formal legal arguments, the Senator has however refused receipt. According to an internal memorandum, German colonial crimes "derive from the execution of the German Empire's sovereignty (acta iure imperii)," whereas the Berlin Senate's Department of Justice is only obligated to forward documents pertaining to civil and commercial conflicts to the defendants. ( reported.[1]) Last year's court hearings ended without result or were postponed due to the absence of German government representatives.

Pressure from Washington

A turning point was reached, when the Ovaherero and Nama plaintiffs in New York tried another means for transmitting the court documents to the German government, via the State Department in Washington and the US Embassy in Berlin, which are officially responsible for lawsuits before US courts. According to official information from Germany, the US Embassy tried to serve the documents to the German foreign ministry on November 15, 2017 - in vain. The German foreign ministry refused reception arguing that the service of the complaint on a foreign State violates the principle of "state immunity," because it is inadmissible that private individuals sue a state before foreign courts.[2] This argument is strongly contested internationally. ( reported.[3]) In any case, the diplomatic affront of this blanket rejection of US court documents has obviously provoked considerable resentment in Washington. As was reported, the US Embassy in Berlin informed the German government in a diplomatic note that by continuing to refuse to appear in court, it risks having "a verdict issued without its statements and without its presentation of evidence" at Germany's "expense" [4] - i.e. a "default judgment."

Motion for Dismissal

Only after Washington had applied pressure, did the German government finally abandon the obstructionist policy, it had been adamantly pursuing. On January 12, the German government's US lawyer made a motion in New York for dismissal of the case - also based on the so-called state immunity.[5] The court suspended a ruling on the motion, due to an error in form. The German side will correct the motion by February 9. A decision is expected to follow. Last Thursday, January 25, the German government, for the first time, was represented in the New York court hearing by its US lawyer and not by a political representative, as the plaintiffs had been hoping. A foreign ministry spokesperson explicitly reiterated that "no position was filed in reference to the charges." The German side only made clear "our fundamental legal opinion" on the lawsuit's "inadmissibility." The next hearing is set for March 3, 2018.

No Chance in Germany

With its reference to "state immunity," the German government is obviously suggesting to the court in New York an alternative to declaring a mistrial. The case could be referred to German courts.[6] After all, at the time, these colonial crimes were committed within Berlin's sovereign jurisdiction, according to their argumentation. Therefore German courts would be the appropriate venue for the case. However, chances of success in Germany for cases involving colonial mass crimes are considered very slim. This has been shown, for example by the efforts of Greek survivors of massacres committed by the Wehrmacht and the SS to win indemnities from German courts. The courts have ruled against the plaintiffs in every single case.[7] The same holds true for indemnity lawsuits brought before German courts by the relatives of the victims of suspected war crimes in Yugoslavia and Afghanistan. These crimes also still remain unpunished, and demands for compensation have been denied.[8] The German judges handling these cases have consistently ruled in accordance with Berlin's claim of "state immunity."

Stolen Land

Representatives of the Ovaherero and Nama are strongly critical of Berlin's year-long attempt to provoke a mistrial by completely ignoring the descendants of the victims. "The Federal Government [of Germany] is acting in colonial style: arrogantly, without respect and in crooked ways", says Esther Muinjangue, Chair of the Ovaherero Genocide Foundation.[9] "We are sick and tired of the German government's arrogance," declared Bernadus Swartbooi, Namibia's former Vice Minister for Land Reform and a Nama representative. Swartbooi points to the fact that the descendants of German colonialists own large stretches of real estate that the colonial power had stolen from the Ovaherero and Nama. These farms, explained Swartbooi, should now be peacefully but "systematically" occupied by the victims' descendants. The struggle waged by the Ovaherero and the Nama is "not an academic, but an existential one" - possibly also in the future for the land that the Germans had illegally occupied.[10]


[1] See also Reception Refused.

[2] Statement regarding recent newspaper reports on New York Court Case. 17.01.2018.

[3] See also Reception Refused.

[4] Paul Starzmann: Herero verklagen die Bundesregierung. 25.01.2018.

[5], [6] Jürgen Zimmerer: Völkermord? Nicht zuständig. 24.01.2018.

[7] See also Resolution of the Reparations Issue.

[8] See also Die zivilen Opfer der Kriege.

[9] In der Sackgasse? 27.01.2018.

[10] Jana Frielinghaus: Verzögern, mauern, schweigen. junge Welt 27.01.2018.