MANHATTAN (CN) – How — and where — should victims collect reparations for a genocide? In New York, an effort to hold present-day Germany responsible for what is grimly called the first genocide of the 20th century hit a setback.
The case was brought by indigenous Ovaherero and Nama and descendants of the estimated 100,000 people who were systematically killed by colonizing Germans between 1904 and 1908 in what is now Namibia.
Ruben Carranza, senior expert on reparations for the International Center for Transitional Justice, noted that U.S. courts have become a resource for survivors of dictatorships, war criminals and genocides.
“Victims can of course file cases in their own countries’ courts – but those courts cannot reach assets in the U.S. or elsewhere and will not have the kind of political impact that a judgment in a country in which judges have a relative degree of independence and enforcement power can exercise,” Carranza said in an email.
In the United States, however, such cases face a high bar. After U.S. District Judge Laura Taylor Swain threw out Ovaherero and Nama’s suit earlier this month for lack of jurisdiction, attorney Ken McCallion appealed immediately, confident that the Second Circuit will give his clients a reversal.
Lead plaintiff Veraa Katuuo said that he and fellow litigants always knew they were in for a long haul.
“This is a unique and historical case, and through this process we succeeded to educate the world about the Ovaherero and Nama genocide at the hands of German soldiers, and in the process put brakes on the so-called government-to-government genocide and reparation negotiations,” said Katuuo, who founded the Association of the Ovaherero Genocide in the USA.
“We are going to take advantage of every avenue available to us within the United States judicial system, and hold ‘mighty’ Germany accountable for the crimes they have committed against the Nama and Ovaherero peoples,” Katuuo added in an email.
Several experts contacted about the case called it important for German society and government to do right by the Ovaherero and Nama, particularly given how the West has grappled for decades with fallout from the Holocaust. The latest version of Katuuo’s complaint calls Germany’s annihilation efforts in southwest Africa a “precursor” to the events of World War II less than four decades later.
Carranza suggested a multipronged effort for reparations.
“There is no ‘best way,’” Carranza said. “Rather, there is the possibility of enlisting domestic (in this case, German) support from political leaders and German citizens in order to put pressure on a more justice-oriented German government to legislate reparations.”
William Darity Jr., an economist and professor of public policy at Duke University, also said German citizens should pressure their government to pass legislation for Ovaherero and Nama reparations.
“Trying to do this through the U.S. court system evades the question of who has direct responsibility and obligation for the compensation,” Darity said in an interview, wryly noting this same court system has a history of shooting down cases for domestic slavery reparations.
As alleged in Katuuo’s amended complaint, filed in February 2018, German settlers started moving to southwest Africa toward the end of the 19th century under the expansionist, white-supremacist concept of Lebensraum, or “living space.”
The presence of the well-established Ovaherero and Nama people, already sovereign nations on the territory, meant the German settlers had to rent land and sign treaties. Quickly breaking those treaties, German colonists seized 50,000 square miles of indigenous land plus livestock without compensation, according to the amended complaint. They raped indigenous women and girls, and enslaved others for manual labor.
Angered by this violent encroachment, the Ovaherero and Nama attacked in 1904 and 1905; a January strike by the Ovaherero killed 123 people. The Germans struck back, with devastating military support from the mainland. They called in Lt. Gen. Lothar von Trotha, who issued what is widely understood as a vernichtungsbefehl, or extermination order.
“Every Herero, with or without a gun, with or without cattle, will be shot,” von Trotha wrote on Oct. 2, 1904. “I will no longer accept women and children. … These are my words to the Herero people.”
The Germans killed 80 percent of the Ovaherero people and half of the Nama, according to the complaint. Those who survived initial slaughter were sent to concentration camps. Some of their bodies were used for experimentation by German doctors.
Representatives for Manhattan’s American Museum of Natural History have not returned a request for comment, but Katuuo’s complaint says it bought the human remains of the Ovaherero from Germany. Last year, the New Yorker reported that the museum has not denied that the Namibian remains in its collection might have come in part from the German massacre. Katuuo argues this constitutes a “direct effect” in the United States from the genocide.
The Ovaherero are “a people that are very closely related with their ancestors and their dead,” Katharina von Hammerstein, a German studies professor at the University of Connecticut, said in an interview.
The murders were “terrible not only because so many people died, but also on top of that because they could not bury the dead, not give them the honor of being buried,” she said. Von Hammerstein emphasized that the remains of ancestors should be returned to the Ovaherero and Nama people regardless of what happens with financial reparations.
“They are due an apology, recognition, they are due a seat at the table,” von Hammerstein said. “And in terms of direct reparations I do very much hope that the negotiations between the two governments will include the Ovaherero.”
Darity agreed that the remains should be returned if the community calls for it, but that process should be separate from the reparations payouts, since it would not be the same as compensation for the harm caused.
Still, he said, the return of remains “is some measure of saying, ‘We acknowledge that something unjust and tragic has occurred.’”
In the suit in New York, Germany is represented by Jeff Harris of Rubin Winston Diercks, Harris & Cooke. Harris made clear in an interview that the case was not about litigating a genocide.
“We never litigated on the facts or what happened in Namibia in those years,” he said. “Our point of view was that this is not the place. This court doesn’t have the jurisdiction to hear this case.”
As to whether Germany should pay reparations or handle the negotiations differently, Harris said these are questions for the German Embassy in Washington, D.C. No representative for the embassy responded to a request for comment.
Duke University’s Darity said compensation should come in the form of cash, rather than foreign aid or other means, and should be measured by computing the inequalities the damaged groups face compared with nondamaged groups.
“Maybe a starting point would be the present value of the land that was seized,” Darity said, “but there needs to be compensation.”
The International Center for Transitional Justice’s Carranza said reparations should not be limited to money payments.
“The most important character of reparations in whatever form is that it recognizes a responsibility on the part of the state or group making reparation,” Carranza said.
“While Germany is avoiding legal responsibility in a U.S. court, it certainly cannot avoid legal responsibility in general – given that it was the occupying colonial power.”
As noted by their lawyer McCallion, the plaintiffs have also filed petitions with the United Nations, “focused on the rights of indigenous people … to participate in decisions relating to their own fate and certainly their own compensation.”
Crucially, the plaintiffs allege Germany has not included them or indigenous leaders or representatives in present-day negotiations with Namibia, which they say is a violation of international law. These negotiations have taken place between the two governments, in which indigenous groups are traditionally underrepresented. Darity, Carranza and von Hammerstein all said representation in talks is key to getting justice.
“At the very least Germany must accept moral responsibility to the Herero and Nama people – and negotiate in good faith with their representatives and the state of Namibia,” Carranza said.
Germany today gives Namibia foreign aid on a large scale, but Carranza said this is no substitute for reparations — “not only because it does not then represent justice, but because it denies a responsibility and effectively becomes a matter of assistance and charity.”
“There is no formula that easily capture compensation for human rights violations, let alone genocide,” he added.
UConn’s Von Hammerstein said events like the Ovaherero and Nama genocide, or U.S. internment of Japanese-Americans during World War II, should always be in history books.
“Every nation has their dirt under the fingernails, and it’s important that some of us point that out,” she said.