THE Ovaherero reparation claims spearheaded by the paramount chief of the Ovaherero Traditional Authority (OTA) suffered a severe setback when a US court in New York declared Germany immune to claims by descendants of Herero and Nama tribes.
A U.S. judge on Wednesday dismissed a lawsuit seeking to require Germany to pay damages over genocide and property seizures by colonists in what is now Namibia more than a century ago.
U.S. District Judge Laura Taylor Swain in Manhattan said Germany was immune from claims by descendants of the Herero and Nama tribes, depriving her of jurisdiction over its role in what some historians have called the 20th century’s first genocide.
Kenneth McCallion, a lawyer for the plaintiffs, said he will discuss his clients’ legal options with them.
The case is unrelated to Germany’s atonement for its role in the Holocaust during World War Two, and its payment of more than US$70 billion to survivors and others, according to the Conference on Jewish Material Claims Against Germany.
According to the plaintiffs, thousands of Herero and Nama were slaughtered, left to starve or died at concentration camps from 1904 to 1908, when Namibia was known as South-West Africa, after the tribes rebelled against German rule.
A 1985 United Nations report called the “massacre” of Hereros a genocide, and Germany has in recent years negotiated with the Namibian Government over the claims.
The plaintiffs said Germany was not shielded by the federal Foreign Sovereign Immunities Act because some of its plunder found its way to Manhattan, triggering exceptions covering commercial activity and improper “takings.”
The OTA alleged that misappropriated funds were used to buy buildings housing Germany’s consulate general and U.N. mission, while skulls and other human remains were sent to the American Museum of Natural History, and a written account of the genocide went to the New York Public Library.
Swain, however, said the exceptions to sovereign immunity were narrow, and the plaintiffs’ relatively expansive view could subject Germany to liability for holding cultural programs or conducting boiler repairs at its buildings.
The judge also said the transfers of human remains and the account of the genocide bore no “direct” or “immediate” connection to Germany’s activities in south western Africa.
Jeffrey Harris, a lawyer for Germany, in an interview said the decision “should stand up if there is an appeal. It says the very specific requirements that would allow a foreign sovereign such as Germany to be sued in the United States were not met.”
(The case is Rukoro et al v Federal Republic of Germany, U.S. District Court, Southern District of New York, No. 17-00062.)