Germany's first blow in genocide case
As was expected the German government through its Washington lawyers appealed to the New York federal court to dismiss the Nama and OvaHerero lawsuit, but it was rejected on Tuesday.
Germany is expected to appear in court next Thursday for the federal class action lawsuit filed by the descendants of the OvaHerero and Nama people seeking restorative justice for the 1904-1908 genocide.
Germany filed the motion for dismissal on the grounds that the court in New York has no jurisdiction over a sovereign state.
Speaking to the media yesterday OvaHerero Paramount Chief Vekuii Rukoro boasted of having “beaten Germany in the first round”.
Germany can reinstate an application for dismissal before or on 9 February 2018.
Correspondence shows that Jeffrey Harris, representing the German government, wrote to the affected communities' lawyer, Kenneth McCallion, on 11 January to inform him that they were planning to file for dismissal.
“While I recognise that this is a fool's errand, nevertheless the rules require that I consult with you before I file,” the e-mail read.
McCallion responded on 12 January and pointed out that Harris had not identified any basis for a motion to dismiss for lack of subject matter jurisdiction.
He added that he did not think there was any basis for the motion and strongly suggested that, in order to avoid any further delay, it would be wise for Harris to file for a notice of appearance and answer on behalf of Germany.
“This would permit us to proceed as expeditiously as possible to a resolution of the litigation. Our clients, as always, continue to remain open to any reasonable settlement proposal or procedure that would allow them to directly participate in the on-going discussion between the governments of Namibia and Germany,” he said.
Meanwhile the German embassy in Namibia issued a statement on Wednesday in which it insisted that a domestic court had no jurisdiction over a sovereign state such as Germany.
The embassy also notified the media that it never comments on pending cases and will not be answering questions regarding the genocide case.
Jurisdiction
Rukoro, a lawyer and former attorney-general, yesterday said the decision to sue Germany in the New York court and not the International Criminal Court (ICC) was deliberate.
“You cannot take a state to the world court without its consent - that is one of the weaknesses there. States have immunity for certain crimes and the crime of genocide according to customary international law is one of those it does not have immunity from,” he said.
He further pointed out that the US has jurisdiction to enable anybody in the world who has suffered crimes against humanity to approach its courts for restitution.
“That is why we specifically appealed to the US and not another country. Germany is simply being arrogant, but they will hit their heads,” said Rukoro.
He further said Germany must take note that the court case was “simply Plan B” and that they could still utilise “Plan C, D and perhaps E”.
“They must know that two thirds of the land that is now owned by white commercial farmers is our heritage. Even the wealth they amassed through colonialism should have been ours,” he said.
JEMIMA BEUKES
Germany is expected to appear in court next Thursday for the federal class action lawsuit filed by the descendants of the OvaHerero and Nama people seeking restorative justice for the 1904-1908 genocide.
Germany filed the motion for dismissal on the grounds that the court in New York has no jurisdiction over a sovereign state.
Speaking to the media yesterday OvaHerero Paramount Chief Vekuii Rukoro boasted of having “beaten Germany in the first round”.
Germany can reinstate an application for dismissal before or on 9 February 2018.
Correspondence shows that Jeffrey Harris, representing the German government, wrote to the affected communities' lawyer, Kenneth McCallion, on 11 January to inform him that they were planning to file for dismissal.
“While I recognise that this is a fool's errand, nevertheless the rules require that I consult with you before I file,” the e-mail read.
McCallion responded on 12 January and pointed out that Harris had not identified any basis for a motion to dismiss for lack of subject matter jurisdiction.
He added that he did not think there was any basis for the motion and strongly suggested that, in order to avoid any further delay, it would be wise for Harris to file for a notice of appearance and answer on behalf of Germany.
“This would permit us to proceed as expeditiously as possible to a resolution of the litigation. Our clients, as always, continue to remain open to any reasonable settlement proposal or procedure that would allow them to directly participate in the on-going discussion between the governments of Namibia and Germany,” he said.
Meanwhile the German embassy in Namibia issued a statement on Wednesday in which it insisted that a domestic court had no jurisdiction over a sovereign state such as Germany.
The embassy also notified the media that it never comments on pending cases and will not be answering questions regarding the genocide case.
Jurisdiction
Rukoro, a lawyer and former attorney-general, yesterday said the decision to sue Germany in the New York court and not the International Criminal Court (ICC) was deliberate.
“You cannot take a state to the world court without its consent - that is one of the weaknesses there. States have immunity for certain crimes and the crime of genocide according to customary international law is one of those it does not have immunity from,” he said.
He further pointed out that the US has jurisdiction to enable anybody in the world who has suffered crimes against humanity to approach its courts for restitution.
“That is why we specifically appealed to the US and not another country. Germany is simply being arrogant, but they will hit their heads,” said Rukoro.
He further said Germany must take note that the court case was “simply Plan B” and that they could still utilise “Plan C, D and perhaps E”.
“They must know that two thirds of the land that is now owned by white commercial farmers is our heritage. Even the wealth they amassed through colonialism should have been ours,” he said.
JEMIMA BEUKES
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