New York — Germany finally appointed counsel in the genocide case in which the chiefs of Ovaherero and Nama are suing the Federal Republic of Germany in the American courts. Counsel Jeffrey Harris appeared on behalf of the German government in a New York court this past Thursday.
Although the hearing was only 15 minutes, plaintiff's lawyer Kenneth McCallion stated that it was "significant" as Germany, which had been avoiding the case for the last year, had now appointed counsel.
On January 12, 2018 Germany filed a motion to dismiss, claiming the case has no jurisdiction to be heard in New York, which Judge Laura Taylor Swain initially rejected on procedural grounds. However, as Judge Swain stated in court on Thursday, she was reinstating Germany's motion as Harris had sufficiently outlined his efforts to engage plaintiffs.
Plaintiffs will now file an amended complaint to respond to Germany's allegations that the case has no jurisdiction in New York. Judge Swain has granted plaintiffs a new deadline of February 14 to file an amendment, which will, among other things, address Germany's jurisdictional issues. Once this is filed, it is expected Judge Swain will again terminate Germany's motion to dismiss.
While it is too early to tell the precise implications of the case, Germany's acceptance of the complaint and appointment of counsel were seen by plaintiffs as a positive step towards moving forward. Assuming all documents are timely filed, the next court date is set for May 3.
This was the fourth pre-trial hearing in the class action suit lodged against Germany for colonial-era genocide in Namibia, which was filed by plaintiffs just over a year ago.
Plaintiffs Vekuii Rukoro, Paramount Chief of the Ovaherero, and Veraa Katuuo, founding member of the Association of the Ovaherero Genocide in the USA, were in attendance. The third plaintiff, Chief David Frederick, a beloved member of the Bethanie Nama community, passed away two weeks ago. Nama Chief Johannes Isaack, who was at court on Thursday, will assume the position of third plaintiff.
Plaintiffs contend that German colonial troops were responsible for the deaths of over 100,000 Ovaherero and Nama, as well as the taking and expropriation of Ovaherero and Nama lands and other property without compensation, violating international law.
"We have been able to trace to some extent the money and the wealth of the Ovaherero and Nama, from Namibia, where it was taken by the Germans back to Berlin... With the fruits of that genocide and the taking of property they've been able to buy significant real estate here in New York. So, we think that Germany's presence here [in New York] is very significant and directly relates back to the Namibian genocide," said McCallion at a press briefing following court on Thursday.
Plaintiffs' legal case against Germany began on January 5, 2017, when they filed a class action lawsuit with the U.S. federal district court in New York under the Alien Tort Statute, a law dating back to 1789 often invoked in human rights cases. Three pre-trial conferences were held last year, though each was postponed as Germany had not appointed counsel.
Plaintiffs had made several failed attempts to serve the defendant through The Hague Service Convention, though Germany refused acceptance on procedural grounds. The next option available to plaintiffs was to initiate diplomatic service on Germany by asking the U.S. State Department to send the summons and complaint directly to the German Foreign Ministry under diplomatic cover. After their formal review of the matter, the U.S. State Department completed its service at the end of last year.