Germany claims immunity
The German government says it is immune from prosecution under the Foreign Sovereign Immunities Act (FISA), which broadly grants immunity to foreign states in America.
The Ovaherero and Nama were residents of a German colony and subjects of the German Reich, governed by its rules, and therefore the expropriation of their property has nothing to do with the principles of international law.
This is one of the arguments presented by the German government to a New York court, where it is being sued by descendants of the victims of the Nama and Ovaherero genocide, which took place in the then South West Africa.
The matter will proceed on 31 July.
The German government is further arguing the alleged expropriation of land and livestock took place under the regulations as applied by a sovereign within its territory and that as such Germany did not violate international law applicable during the time in question, which is between 1885 and 1915.
It said the inner dealings of the German Reich, in one of its colonies is not governed by international law.
The court papers were filed by their lawyers, Jeffrey Harris, Max Rieder van Paar, Walter E Diercks of Rubin, Winston, Diercks, Harris & Cooke, LLP on 13 March.
They further argued the Federal Republic of Germany is immune from prosecution under the Foreign Sovereign Immunities Act (FISA) which broadly grants immunity to foreign states in America.
“If no exception applies, the New York district court has no jurisdiction,” Germany maintained.
It added the court lacks subject matter jurisdiction to hear the case because it presents several political questions which the constitution reserves for the legislative and executive branches and which would require the court to interfere with foreign affairs, including bilateral relations between Germany and Namibia.
“Even if Germany is not immune under FSIA, the court should decline to exercise jurisdiction and require the plaintiffs to exhaust their remedies in Germany. Germany is a more convenient forum and the factors that apply should permit the court to dismiss the case on that basis,” Germany said.
It said all relevant records and documents are in Germany and the process to obtain them or witnesses is more readily available in the country, while maintaining the lawsuit has no connection to the United States.
The Ovaherero and Nama, in an amended complaint filed on 14 February in the New York court battle, argued the former colonial power, which would otherwise be immune to the jurisdiction of the court under FISA, lost immunity pursuant to the FISA's so-called expropriation exception, in violation of international law.
The genocide descendants allege in their claim that the Ovaherero and Nama were the victims of the unlawful taking of their property, including land, livestock, concessions, taxation and customs rights, precious gems and metals, human labour and body parts during the period between 1885 and 1909, at the hands of the then German colonial authorities.
They alleged these actions deprived the Ovaherero and Nama people of their sovereign status and crippled their sovereign polities to such an extent that they were largely disbanded and broken up.
The Germans allegedly turned a blind eye to the systematic rape and use of people in forced labour, the killing over 100 000 and the forcing of survivors into concentration camps.
There has been no reparation for these acts and they have not been permitted to participate in recent talks entered into by Germany and Namibia, the Nama and Ovaherero argue.
Ovaherero paramount chief Vekuii Rukoro, representing the Ovaherero Traditional Authority and Chief Johannes Isaack, the chairman of the Nama Traditional Authorities Association, the Association of the Ovaherero Genocide in the USA Inc. and Barnabas Veraa Katuuo individually and as an officer of the American-based association, on behalf of itself and all other Ovaherero and Nama indigenous peoples, are bringing the action.
The claims are for damages resulting from Germany's taking and expropriating their property, including their sovereign status in violation of applicable international law during the period the period 1885 through to 1915 in the then South West Africa.
FRED GOEIEMAN
This is one of the arguments presented by the German government to a New York court, where it is being sued by descendants of the victims of the Nama and Ovaherero genocide, which took place in the then South West Africa.
The matter will proceed on 31 July.
The German government is further arguing the alleged expropriation of land and livestock took place under the regulations as applied by a sovereign within its territory and that as such Germany did not violate international law applicable during the time in question, which is between 1885 and 1915.
It said the inner dealings of the German Reich, in one of its colonies is not governed by international law.
The court papers were filed by their lawyers, Jeffrey Harris, Max Rieder van Paar, Walter E Diercks of Rubin, Winston, Diercks, Harris & Cooke, LLP on 13 March.
They further argued the Federal Republic of Germany is immune from prosecution under the Foreign Sovereign Immunities Act (FISA) which broadly grants immunity to foreign states in America.
“If no exception applies, the New York district court has no jurisdiction,” Germany maintained.
It added the court lacks subject matter jurisdiction to hear the case because it presents several political questions which the constitution reserves for the legislative and executive branches and which would require the court to interfere with foreign affairs, including bilateral relations between Germany and Namibia.
“Even if Germany is not immune under FSIA, the court should decline to exercise jurisdiction and require the plaintiffs to exhaust their remedies in Germany. Germany is a more convenient forum and the factors that apply should permit the court to dismiss the case on that basis,” Germany said.
It said all relevant records and documents are in Germany and the process to obtain them or witnesses is more readily available in the country, while maintaining the lawsuit has no connection to the United States.
The Ovaherero and Nama, in an amended complaint filed on 14 February in the New York court battle, argued the former colonial power, which would otherwise be immune to the jurisdiction of the court under FISA, lost immunity pursuant to the FISA's so-called expropriation exception, in violation of international law.
The genocide descendants allege in their claim that the Ovaherero and Nama were the victims of the unlawful taking of their property, including land, livestock, concessions, taxation and customs rights, precious gems and metals, human labour and body parts during the period between 1885 and 1909, at the hands of the then German colonial authorities.
They alleged these actions deprived the Ovaherero and Nama people of their sovereign status and crippled their sovereign polities to such an extent that they were largely disbanded and broken up.
The Germans allegedly turned a blind eye to the systematic rape and use of people in forced labour, the killing over 100 000 and the forcing of survivors into concentration camps.
There has been no reparation for these acts and they have not been permitted to participate in recent talks entered into by Germany and Namibia, the Nama and Ovaherero argue.
Ovaherero paramount chief Vekuii Rukoro, representing the Ovaherero Traditional Authority and Chief Johannes Isaack, the chairman of the Nama Traditional Authorities Association, the Association of the Ovaherero Genocide in the USA Inc. and Barnabas Veraa Katuuo individually and as an officer of the American-based association, on behalf of itself and all other Ovaherero and Nama indigenous peoples, are bringing the action.
The claims are for damages resulting from Germany's taking and expropriating their property, including their sovereign status in violation of applicable international law during the period the period 1885 through to 1915 in the then South West Africa.
FRED GOEIEMAN
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