Try Germany, legal expert suggests
Following their loss in a New York federal court, the communities affected by the genocide have been advised to try a German court.
A Frankfurt international law expert, Matthias Goldman, believes that it would be worthwhile for the Ovaherero and the Nama communities to take their genocide case to the German courts.
Goldman gave his view on the class action lawsuit the communities had brought against Germany in a New York federal court. The case was dismissed because Germany enjoys sovereign immunity.
The affected communities have indicated that they will appeal. Goldman believes that the Nama and Ovaherero submission was well done, but was not looked into because Germany enjoys immunity before the court. “And they believe themselves to be barred to go into any of the substantive questions...” he said.
“The problem really with that case is [that] it was taking place in New York and not in Germany, so Germany had a relatively easy ride in invoking immunity,” said Goldman.
He explained that one state cannot call another state before its court.
“I do think it would be worthwhile to try in Germany... German law is probably not as open as the United States law when it comes to passing judgment on atrocities. But it may be worthwhile trying it; there are German judges nowadays who are of a different generation and who might be willing to reconsider the legal situation,” he said.
Legality
Goldman also rejected Germany's position that the crimes during the 1904-08 genocide were justifiable at the time.
“The one bifurcation concerns the status of the law of the time, and again the German government says there were no international human rights treaties at the time.
“And it is certainly true, but I look into the legal literature from the time and I see how often they make reference to basic standard of humanity – human treatment that should be accorded to everyone.
“So, by claiming that there was no such thing as a right to good treatment under international law at the time, the German government is giving us just one part of the picture and the picture is much bigger,” he said.
Morality
Meanwhile, Namibian political scientist Professor Andre du Pisani says that killing by design constitutes a moral crime that no one can justify.
“It [the genocide] was a moral crime because it was premised on the notion of the superiority of some and the inferiority of others.
“It was a moral crime because it was premised on a construct that civilisation was the preserve of those who are not from Africa and who are not black,” he said.
JEMIMA BEUKES
Goldman gave his view on the class action lawsuit the communities had brought against Germany in a New York federal court. The case was dismissed because Germany enjoys sovereign immunity.
The affected communities have indicated that they will appeal. Goldman believes that the Nama and Ovaherero submission was well done, but was not looked into because Germany enjoys immunity before the court. “And they believe themselves to be barred to go into any of the substantive questions...” he said.
“The problem really with that case is [that] it was taking place in New York and not in Germany, so Germany had a relatively easy ride in invoking immunity,” said Goldman.
He explained that one state cannot call another state before its court.
“I do think it would be worthwhile to try in Germany... German law is probably not as open as the United States law when it comes to passing judgment on atrocities. But it may be worthwhile trying it; there are German judges nowadays who are of a different generation and who might be willing to reconsider the legal situation,” he said.
Legality
Goldman also rejected Germany's position that the crimes during the 1904-08 genocide were justifiable at the time.
“The one bifurcation concerns the status of the law of the time, and again the German government says there were no international human rights treaties at the time.
“And it is certainly true, but I look into the legal literature from the time and I see how often they make reference to basic standard of humanity – human treatment that should be accorded to everyone.
“So, by claiming that there was no such thing as a right to good treatment under international law at the time, the German government is giving us just one part of the picture and the picture is much bigger,” he said.
Morality
Meanwhile, Namibian political scientist Professor Andre du Pisani says that killing by design constitutes a moral crime that no one can justify.
“It [the genocide] was a moral crime because it was premised on the notion of the superiority of some and the inferiority of others.
“It was a moral crime because it was premised on a construct that civilisation was the preserve of those who are not from Africa and who are not black,” he said.
JEMIMA BEUKES
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