The Forgotten Genocide: Jurisdiction in Rukoro v. Federal Republic of Germany

Colleen Devine

Vol. 40 Associate Editor

The concept of the crime of genocide was developed following World War II by law professor Raphael Lemkin, who fled to the United States during the Holocaust.[1] Following World War II and the atrocities of the Holocaust, the German government has paid out more than $50 billion in the form of reparations to the State of Israel and indemnification to Holocaust survivors.[2] The German Finance Ministry estimates that it will pay out almost $20 billion more by the year 2030, when according to government calculations the last survivors will have died.[3] However, there has been a call for the German government to admit responsibility and pay reparations for another genocide perpetrated during their colonial rule of West South Africa. Often referred to as the “Forgotten Genocide”,[4] an estimated 100,000 Hereros and Nama people died as a result of actions by the German government between 1904 and 1908. [5] Following an uprising against the harsh conditions of colonial rule by the Herero and Nama tribes, German general, Lothar von Trotha, issued a written order of extermination saying: “Within the German borders, every Herero, with or without a gun, with or without cattle, will be shot”.[6] The tribes were driven into the desert, while those that escaped were imprisoned in concentration camps.[7] Between 1904 and 1908 an estimated 80 percent of the Herero and  50 percent Nama people were killed by the atrocities.[8] The Herero people filed suit in the United States in 2001 against the German government. Germany then rejected to accept the service of the action under Art. 13 of the Hague Convention on the Service of Judicial and extrajudicial Documents in Civil or Commercial Matters claiming sovereign State immunity.[9] However, since this initial claim Germany and Namibia have begun negotiations regarding reconciliation.[10] In July 2015, the Bundestag, German’s federal parliament, officially referred to the colonial ear crimes as a “genocide;” however, the government has repeatedly denied calls to pay reparation .[11] Most recently, in 2017 a collective of Herero and Nama organization filed another lawsuit, Rukoro v. Federal Republic of Germany, in the Southern District of New York using the Alien Tort Statute.[12] In their complaint, the plaintiffs: (1) request reparations for the genocide and the unlawful taking of property and (2) enjoin and restrain Germany from excluding the tribes from the ongoing negotiations between the two governments .[13] At first Germany refused to participate in the proceedings, but later appointed counsel and filed a motion to dismiss for lack of jurisdiction.[14] To gain jurisdiction in the U.S. the complaint draws on the Alien Tort Statute which gives U.S. federal courts original jurisdiction to hear lawsuits filed by non-U.S. citizens for torts committed in violation of international law.[15] The expansion of international law in the 21st century to include human rights has allowed the Alien Tort Statute to successfully give plaintiffs a venue for human rights claims in the United States.[16] However, the Supreme Court has since narrowed the application of the Statute. In Sosa v. Alvarez-Machain the Supreme Court held that the Statute provides a basis for federal subject matter jurisdiction and only constitutes a separate cause of action if the violation is of an international norm that is specific, universal and obligatory.[17]  While the first claim, drawing on genocide, fits into the “specific, universal and obligatory” requirement in terms of international law today, the court will have to address whether at the time of the acts these requirements were met.[18] The second claim will mostly not met the requirement, as the plaintiffs draw on Art. 18 of the U.N. Declaration of the Rights of Indigenous People which is a non-binding U.N. General Assembly Resolution.[19] There is also an open question if there is a sufficient link to United States to establish jurisdiction under the Alien Tort Statute. The Supreme Court ruled in Kiobel v. Royal Dutch Petro Co. that the “Alien Tort Statute is presumed not to apply extra-territorially and that the presumption can only be rebutted when the claims sufficiently touch and concern the territory of the United States”[20].  The plaintiffs argue that because some of the members of the class action are permanently living in the U.S. there is a sufficient link.[21] However, the genocide took place in the South-West Africa Colony and did not involve any American residents at the time. An additional hurdle with regards to jurisdiction, is the sovereign immunity claim raised in the 2001 suit. The plaintiffs argue that the expropriation exception in the Foreign Sovereign Immunity Act applies because taking of property not only “effectuated genocide or serve as means of carrying out genocide but rather, the expropriations were themselves genocide and therefore the plaintiffs’ property-based claims fall squarely within the FSIA’s expropriation exception.”[22] However, “this exception had not been backed by practice in other States and does not seem to reflect the scope of immunity from jurisdiction under international law.”[23] As such, it seems improbable that the case will proceed due to any number of jurisdictional issues. However, the Alien Tort Statute has allowed the plaintiffs to carry the case further than international lawyers originally expected, requiring Germany to respond to the plaintiffs’ augments.[24] By being able to bring the suit, the Alien Tort Statute helped to bring international attention to the Herero/Nama genocide with various international media outlets covering the suit. With increased visibility, pressure may continue to mount, both within and outside of Germany, for the government to pay reparations.  The ability to bring the suit effectuated an expressive purpose, providing a forum for the descendants of the victims to be heard, beginning the process of providing justice.

[1] William A. Schbas, Origins of the Genocide Convention: From Nuremberg to Paris, 40 Case W. Reserve J. Int’l L. 35, 50 (2007). [2] Michael Z. Wise, Reparations, Reparations, The Atlantic Monthly, Oct. 1993,  at 32-33. [3] Id. [4] Jason Burke, Germany moves to atone for ‘forgotten genocide’ in Namibia, The Guardian, Dec. 25, 2016, https://www.theguardian.com/world/2016/dec/25/germany-moves-to-atone-for-forgotten-genocide-in-namibia. [5] Kate Brady, Germany officially refers to Herero massacre as genocide, DW. July 13, 2016, https://www.dw.com/en/germany-officially-refers-to-herero-massacre-as-genocide/a-19396892. [6] Ewelina U. Ochab, The Herero-Nama Genocide: The Story Of A Recognized Crime, Apologies Issued And Silence Ever Since, Forbes, May 24, 2018, https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#24eca32f6d8c [7] Brady, supra note 5. [8] Ochab, supra note 6. [9] Andreas Buser, German Genocide in Namibia before U.S. Courts, Volkerrechtsblog, Jan 11, 2017, http://voelkerrechtsblog.org/german-genocide-in-namibia-before-u-s-courts/. [10] Id. [11] Brady, supra note 5. [12]  See Complaint, Rukoro v. Fed. Rep. of Germany, No. 1:17-cv-00062,  (S.D.N.Y. 2017) https://www.courtlistener.com/recap/gov.uscourts.nysd.467192/gov.uscourts.nysd.467192.1.0.pdf. [13] See Richard Doren & Alexander Wentker, Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany, EJIL: Talk! Aug. 13, 2018, https://www.ejiltalk.org/jurisdictional-immunities-in-the-new-york-southern-district-court-the-case-of-rukoro-et-al-v-federal-republic-of-germany/; Buser, supra note 9. [14] Buser, supra note 9. [15] The Alien Tort Statute, The Center for Justice & Accountability, https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/ (last visited on Oct. 20, 2018). [16] Id. [17] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Duane Windsor, Alien Tort Claims Act, Encyclopedia Britannica (July 2, 2014), https://www.britannica.com/topic/Alien-Tort-Claims-Act#ref1202801. [18] Buser, supra note 9. [19] Id. [20] Id. [21] Complaint, Rukoro ¶ 14. [22] Brady, supra note 5. [23] Doren & Wentker, supra note 13. [24] Id. The views expressed in this post represent the views of the post’s author only.