The eardrums of the New York southern district judge echoed with tales of enslavement, concentration camps, stolen land, rapes of women and children, lynched and dissected bodies, and dry bones.
From a complaint filed on 5 January 2017 by members of the Ovaherero and Nama communities, judge Laura Swain heard tales of human skulls lying alongside rib cages and thousands of fallen cattle in the Omaheke desert, retracing the path of those frightened steps who strove to escape German commander Adrian Dietrich Lothar von Trotha, hopelessly in a 'march of death' through the desert.
Yet, for the horror of the genocide, the judge quickly remarked that "strong moral claims are not easily converted into successful legal causes of action". Indeed, with the judgement she handed down on Wednesday last week in the matter where Vekuii Rukoro and others are opposing Germany (the 'Rukoro' case), the federal court dismissed the Ovaherero and Nama complaint. At issue in that matter was whether that court had jurisdiction (i.e., the legal power) to order that Germany pay damages for the genocide of the Ovaherero and Nama indigenous people in German South West Africa from 1885 to 1909.
Thus, the judge analysed the facts relating to the genocide only to the extent that they helped her decide whether the court had jurisdiction; she did not delve into the facts to determine whether they truly happened. In other words, the court proceedings never moved to the stage of determining the truth of the claims made in the complaint (the trial stage); instead, they remained stuck in a preliminary dispute over the court's legal powers.
The law which mostly applied to the Rukoro case, the Foreign Sovereign Immunities Act, allows US federal courts to bypass the immunity of foreign states in exceptional circumstances. One such circumstance, the 'takings exception,' formed the real basis of the complaint. It arises when a foreign state violates international law by forcibly 'taking' (i.e., by expropriating) property outside the US, and later placing that property in the US to carry on a 'commercial activity' in the US. The judge recalled that a state engages in a commercial activity when it acts "in the manner of a private player within the market".
The Ovaherero and Nama complainants argued that Germany acted as a "market maker", a "market participant", and a "major player" in the "business of bone display" and the "bone trade". They maintained that Germany used four properties in New York to fulfil contractual obligations (housing, maintenance, and insurance), and to propagate German culture and develop American interest in Germany with the end-goal of promoting "commercial growth through cultural growth". Germany, through its lawyer, countered that the complainants failed to prove that it purchased the properties to carry on commerce in the US.
The judge rejected the "well-pleaded" contention and the solid documentary evidence presented by the complainants' lawyers because, she reasoned, Germany uses the four properties principally as private residence for its diplomats or other entities engaged in propagating German culture, such as the Goethe Institute. She also rejected it because using properties to support cultural exchange and arts programmes does not amount, in her view, to commercial activities.
On the magnified lens, the above ruling suffers from one key inconsistency. Earlier, the judge said that in determining what act qualifies as 'commercial', it is the nature, and not the purpose, of the act that counts. Yet, later, she threw out the complainants' arguments on the grounds that Germany uses the properties for "the primary purposes" of housing its diplomats and other personnel.
Nevertheless, as disheartening as the judgement may have been to them, the complainants would have only won a partial victory, even assuming that they had convinced the judge to order that Germany pay damages for the genocide. Existing courts, whether domestic or international, cannot do justice to the unspeakable ordeal the Ovaherero and Nama endured at the hands of the German colonisers because, among others, the genocide happened long before any of the international courts with power to try genocide today came into being, and states (including the US and Germany) will find it very hard to decide cases based on acts that took place in other states - Namibia, in the Rukoro case. And the proceedings before the federal trial court illustrate this sad reality. To be sure, the proceedings did not focus on genocide as such and, instead, treated it as a civil wrong, and not as a crime.
In light of this, the most viable option for the complainants to reclaim the humanity of the victims is to take the diplomatic route, even if they would prefer that the international community set up Nuremberg-like tribunals over the ongoing negotiations between Namibia and Germany. However, one of the biggest disadvantages of diplomatic means of settling international disputes remains that, unlike the resolution of disputes by the courts, diplomacy will do very little to neutralise the huge power imbalances between Namibia and a state with one of the world's most influential governments, and with an economy more than 250 times larger. In other words, Namibia is less likely to get the full amount that it seeks (reportedly, about N$500 billion) through diplomatic channels. So, to maximise the reparations that it pursues in negotiations with its Goliath (Germany), Namibia will need David's wits, skill, and a stiff spine.
* Dunia Prince Zongwe, whose book 'International Law in the Namibian Context' will be published in the next couple of months, is an associate professor at Walter Sisulu University. Bernhard Tjatjara teaches commercial law and company law at the Namibia University of Science and Technology (Nust). They both write in their personal capacities.