(CN) — Descendants of the victims of the first genocide of the 20th century seeking reparations from Germany cannot do so in New York, the Second Circuit affirmed Thursday.
The case was first brought by indigenous Ovaherero and Nama people and the descendants of the roughly 100,000 people killed by colonizing Germans from 1904 to 1908 in what is now Namibia.
The slaughter was carried out by orders from General Lothar von Trotha, who had said that his goal was to annihilate the Ovaherero people. Those who survived the slaughter were taken to concentration camps and surviving women were subject to rape.
Ruben Carranza with The International Center for Transitional Justice said Germany should feel an obligation to make amends with these indigenous people.
“Germany at the very least should recognize a moral if not legal obligation to provide reparations. It has given at least $70 billion in reparations to victims of the Holocaust and Nazi persecution, adding $88 million more as recently as two years ago,” said Carranza in an email.
“Why should tens of thousands of Africans who were slaughtered, starved and experimented on just 35 years before the start of World War II be denied what Germany has recognized as its obligation to others?”
Lead plaintiffs Vekuii Rukoro and Barnabas Veraa Katuuo, with the Association of The Ovaherero Genocide in the USA, filed the lawsuit in New York on the notion that the bones of their ancestors killed in the genocide ended up in the basement of the American Museum of Natural History in Manhattan.
The remains had been taken during the genocide by colonizers in a research effort to prove that the white race was superior.
Rukoro claimed that Germany had purchased property in New York with some wealth it acquired from property it seized from Ovaherero and Nama, giving New York jurisdiction to hear the case.
A federal judge disputed that argument and threw out the case last March for lack of jurisdiction under the Foreign Sovereign Immunities Act. The three-judge panel for the Second Circuit affirmed that decision, finding it to be a stretch that just because Germany owns property in the U.S. that would give them jurisdiction to hear these claims.
“We find plaintiffs’ allegations insufficient to trace the proceeds from property expropriated more than a century ago to present‐day property owned by Germany in New York,” said U.S. Circuit Judge Rosemary Pooler.
Representing Germany, Jeffrey Harris with Rubin Winston Diercks Harris & Cooke, expressed gratitude for the ruling, noting that the outcome has been obvious this whole time.
“The last line in the court’s opinion makes the point that regardless of the wrongs alleged, they ‘must be addressed through a vehicle other than the U.S. court system’,” said Harris in an email. “This is a point we have stressed throughout this litigation.”
Indeed, the ruling brings a halt, at least in the U.S., to potential reparations for the Ovaherero and Nama people.
University of Connecticut professor Katharina von Hammerstein said that despite the setback, it still helps the cause.
“The cases in the courts have, even if dismissed, created publicity for the Herero and Nama cause,” said von Hammerstein in an email. “Calling for public debate of and reparations for the genocide that has caused detrimental long-term damages to both communities is as much a legal as a political battle.”
The 23-page ruling further noted that the Ovaherero and Nama people failed to prove that the remains in the museum are in connection with any German commercial activity in the U.S.
“Even assuming for argument’s sake that Germany engaged in an international commercial market for bones when it sold the remains to the AMNH, there are no allegations that Germany continues to engage in such sales,” wrote Pooler, a Clinton nominee. “The statute requires that the commercial activity be ‘carried on in the United States by the foreign state’, which requires the activity at issue be current.”
Carranza says the appellate court got this all wrong, noting that the judges are “blind” to the impact this has for other slaves seeking reparation.
“The appellate court’s reasoning is that the assets of Germany in New York are too distantly connected to what assets they took from the Namibian communities subjected to genocide. This is short-sighted,” said Carranza in an email.
“It erroneously conflates property with profit, ignoring the fact that Germany as a colonizer, just like other European colonizers, profited on a scale beyond what can be measured in buildings, money or other property. They built their entire economy, including both their public and private enterprises, on colonization and in many cases slavery.”
The Ovaherero and Nama people were represented by Kenneth McCallion, who did not immediately respond to an email seeking comment.
Judge Pooler was joined on the ruling by U.S. Circuit Judges Ralph Winter Jr., a Ronald Reagan nominee, and Michael Park, a Donald Trump nominee.