20 July 2017

Namibia: Second Genocide Hearing Postponed in NY

Photo: Wikipedia
Herero prisoners of war, around 1900.

New York — The second hearing in the case lodged against Germany for colonial-era genocide in Namibia, scheduled for July 21 has been postponed until October after the plaintiffs requested an adjournment of the July conference last week, because Germany refused to accept the summons.

The plaintiffs, which include Ovaherero Chief Vekuii Rukoro, his Nama counterpart David Frederick, and Veraa Katuuo, a founding member of the U.S.-based Association of the Ovaherero Genocide Foundation, contend that Germany has excluded representatives of the Ovaherero and Nama communities from talks with Namibia regarding the genocide. On January 5, they filed a class action lawsuit against Germany with a U.S. federal court in New York under the Alien Tort Statute, a law dating back to 1789 often invoked in human rights cases. A pre-trial conference was held in New York on March 16. The hearing itself was postponed until July, as Germany failed to appoint counsel, despite the plaintiffs' attempts to serve the complaint to the German Embassy in Washington.

In April, the plaintiffs used a legal and litigation support company, Crowe Foreign Service, to serve notice on the defendant in Berlin. That was done via The Hague Service Convention, the method typically employed in serving judicial documents to a foreign government. The Hague Service Convention is a treaty amongst dozens of countries allowing judicial documents to be processed from one country to another without the use of diplomatic channels, but in a June letter to Crowe Foreign Service, Germany refused to acknowledge the plaintiffs' complaint.

Germany holds that as the plaintiffs' damages claims were derived from Germany's sovereign actions, they have no basis under The Hague Convention, which is grounded in the service abroad of judicial documents relating to civil or commercial matters - not sovereign.

Plaintiffs' counsel, Ken McCallion, said Germany's rejection of service "forces us to serve Germany through diplomatic means, through the U.S. State Department."

Under the Foreign Sovereign Immunities Act (FSIA), the law that defines jurisdiction of U.S. courts in cases against other countries, the next step is for the plaintiffs to initiate a "diplomatic service" on Germany. This means the legal papers would be hand-delivered by the U.S. Embassy in Berlin to the German Foreign Ministry.

Once the U.S. Embassy serves the summons and complaint on Germany, it is expected that Germany will appoint counsel. Should Germany not appear in court, the applicants believe they have sound basis for filing a motion for default.

McCallion has requested an adjournment of the July conference to allow time for the "diplomatic service" on Germany to be completed. Judge Laura Taylor Swain granted the request to postpone the case and rescheduled the conference to October 13.

Historical records suggest more than 100,000 Ovaherero and Nama were killed in then German South West Africa during the German colonial period at the end of the 19th century. They were subsequently robbed of vast areas of their ancestral homelands, and their descendants claim they remain displaced from that land today.

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