The hearing in the US District Court in New York lasted only ten minutes. Plaintiffs lawyers and Judge Laura Taylor Swain were meeting for a pretrial conference to discuss a possible class-action suit against Germany by Namibian traditional leaders.
No representative of the German government was present. Lawyer Kenneth McCallion said he was surprised no one from Germany had appeared.
Pretrial conferences enable a judge to discuss unresolved questions. They do not mark the start of a lawsuit, nor do they mean that proceedings will actually go ahead.
Paramount Chief Rukoro of the Ovaherero Traditional Authority and Chief David Frederick of the Nama Traditional Authority want the US court to force the German government to include them in German-Namibian talks. They are also seeking compensation for “incalculable damages”
Some 15 tribal representatives attened the hearing. They came from Namibia, Canada and midwest America. Some were wearing colonial-era traditional dress and they won their first victory when Judge Swain announced that there would be a second hearing on July 21.
“When I heard that she said the hearing can take place - that was the greatest success we have achieved. This is the sign that we are the winners,” said 69-year-old Ida Hoffmann, a Namibian deputy and Nama representative.
Germany and Namibia are currently negotiating over how to deal with a legacy of genocide in what was German South West Africa in the early 1900s. German colonial troops were responsible for the deaths of more than 80 000 members of Herero and Nama ethnic groups. These crimes are regarded as the first genocide of the 20th century.
Both the German and Namibian governments reject direct negotiations with the Herero and Nama. Lawyer Kenneth McCallion said earlier they should be at the negotiating table because legally they are the victims’ representatives.
In separate development, the website The Namibian is reporting that the Namibian government has always in the past stayed clear of demanding reparations from Germany but has now changed its stance. The Namibian claims to have seen documents showing that the Namibian government wants over $30-billion (€28-billion) from Germany. Berlin repeatedly refused to pay direct reparations, saying that its development aid worth hundreds of millions of euros since Namibia’s independence from South Africa in 1990 was “for the benefit of all Namibians.”
It can be difficult to bring about class-action suits in the United States on the basis of human rights violations. A suit filed by Herero representatives against the German government and Deutsche Bank in 2001 was dismissed. Mia Swart, professor in international law at the University of Johannesburg, told DW It was possible though unlikely that the court would accept this latest case. The plaintiffs are suing Germany under the Alien Tort Statute, also called the Alien Tort Claims Act, a US law dating back to 1789 which is often invoked in human rights case. There was a time when US courts and lawyers interpreted this legislation as a means by which human right violations in foreign countries could be brought within the jurisdiction of US courts, but those days are believed to be over.
‘Touch and concern’
Nigerian citizens sued the oil giant Shell Royal Dutch Petroleum in the United States in 2006. They accused the company and its Nigerian subsidiary of perpetrating human rights violations in Nigeria’s Ogoni region. With the help of the Nigerian government, Shell was alleged to have brutally repressed peaceful resistance to the extraction of oil in the Niger Delta. The case ended up in front of the Supreme Court in 2013. The court ruled against the plaintiffs because the case did not “touch and concern” the United States.
Since that ruling, the Alien Tort Claims Act has only been applied in cases which do concern the United States. McCallion believes nonetheless that his class-action suit will go ahead. He told Reuters in January that the act leaves the door open for US courts to assert jurisdiction in genocide cases. Professor Swart is rather more cautious.
“It’s also a question about the current mood in the US where there is no much openness to the use of the Alien Tort Act anymore,” she said.
It is possible that the Herero and Nama representatives are pursuing a two-pronged strategy. Irrespective of whether the class-action suit goes ahead or not, the case is bound to attract the media attention. When their lawyer announced the suit, both the British and US media covered the story. This puts indirect pressure on the German government, which has yet to officially apologize for the colonial-era genocide.
Herero and Nama representatives believe the mere threat of legal proceedings might encourage German officials to settle out of court.
“And that might raise the issue of including the affected communities that feel they are excluded,” Herero representative Esther Muinjangue told DW in Berlin last month.
That scenario looks unlikely. When the complaint was filed with the US District Court in Manhattan in January, the German government appeared unruffled. Berlin’s special envoy on the German-Namibian talks, Ruprecht Polenz, told DW at the time that the move had “not surprised” him.