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.


Meet Three-Month-Old Baby Who Survived Flood

Baby, Wise Pandulo Shindinge who survived a flash flood in Windhoek, Havana in which his mother Saima Thomas, 32, and… Read more »

See What Everyone is Watching

Copyright © 2017 New Era. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.

AllAfrica publishes around 800 reports a day from more than 140 news organizations and over 500 other institutions and individuals, representing a diversity of positions on every topic. We publish news and views ranging from vigorous opponents of governments to government publications and spokespersons. Publishers named above each report are responsible for their own content, which AllAfrica does not have the legal right to edit or correct.

Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica. To address comments or complaints, please Contact us.