Ovaherero and Nama communities wishing to litigate in the United States of America (USA) for justice for the 1904-1908 Genocide that nearly wiped out both communities and completely changed their ways of life for the worst have met two disappointments in their case there.

On 11 March 2019, Judge Laura Taylor Swain of the US District Court in the Southern District of New York dismissed an ammended complaint Ovah- erero Paramount Chief Vekuii Rukoro and other plaintiffs filed against Germany.

The lawsuit was for damages the enslavement and genocide, as well as expropriation of property, including land and

livestock had brought the communitie. Since the case was against Germany, a sovereign country, the Namibian com- munities and other plaintiffs finding themselves in the dias- pora had to allege offences that enable the Foreign Sovereign Immunities Act (FISA) to in- terfere with a foreign country’s sovereignty.

One of FISA’s exceptions allowingUS courts to interfere with the sovereingty of foreign countries only provides for instances where a property is taken in violation of international law and proceeds from it bankroll a com- mercial activity in the US.

The takings exception under FISA reads as follows: “[a]foreign state shall not be immune from the jurisdiction of courts of the United States orof the States in any case… in which rights in property taken inviolation of interna- tional law are in issue and that property or any property exchanged for suchproperty is present in the United States inconnection with a commercial activity carried on in the United States by the foreign state; orthat property or any property exchanged for such property is owned oroperated by an agency or instrumentalityof the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.”
Both communities’ case as filed by Ovaherero Paramount Chief Vekuii Rukoro and other plaintiffs was that remains of their ancestors Professor Felix von Luschan collected and the Germans shipped to the American Museum of Natural History (AMNH) after his widow sold it to the Americans met both FISA standards, the takings and commercial activity exceptions. They say one of the few remaining copies of the Blue Book, a record of atrocities committed against the communities, is on the shelves of the New York Public Library.
Von Luschan was an anthropologist and ethnologist at the Museum for Ethnology in Berlin. He died in 1924.
They say at least some of the proceeds from properties taken by the Germans mixed with money the European nation used to buy four German government properties in New York, and those properties are used to further German commercial interest.

Judge Taylor Swain found that the Namibians correctly argued that Germany had made part of its wealth from property expropriated from Ovaherero and Nama people, and the co-mingled money was used to buy some of the German property in New York. She found for that reason that property exchanged for those taken from the Namib- ian communities could be inferred to be present in New York. But she still concluded that the court lacked subject matter jurisdiction.

When the United States Court of Appeals for the Second Circuit delivered judgment on the appeal on 24 September 2020, it reversed her finding that Germany’s US properties may have been bought with funds derived from property it seized in South West Africa (now Namibia).

Judges Winter, Pooler and Park said the Namibian plain- tiffs must show that they had a) rights in a property or properties question b) that the properties were taken c) in violation of international law and d) that the property is in the United States of America in connection with a busi- ness activity or being used by an agency or instrument of the foreign country, which conducts business there.

They say the lower court may have relied on an overtaken judgment, the Simon v Hungary judgment, which allowed Simon to sue after arguing that since Hungary sold the stolen property and the funds paid mixed with revenue it used to fund various government and commercial oper- ations, it was plausible that Hungary retained the stolen property or the money made from it.

The court says that argument is sufficient for a plaus- ability standard but not for a valid argument standard. It further was at pains to accept the evidence of commercial activity the plaintiff provided, which included restoration work and repair of 3 boilers or the use of the 4 facilities to promote German culture, history and by translation, German commerce.

The judges said there was a disjoint in the initial plead- ings, which involved taking of land, livestock and personal property, and the ammended pleadings which focused on the taking and trade in human skulls. It found that FISA does not interfere in the sovereignty of countries when land, livestock and personal property are taken, or when skulls are taken.

But it does when Germany trades in human skulls, and it has bought a property in the US from proceeds of that sale from where an agency continues to conduct the sale of skulls or any other commercial activity.

“Plaintiffs fail to allege that the AMNH Remains are currently present in the United States in connection with a German commercial activity. Even assuming for argu- ment’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 contin- ues to engage in such sales. The statute requires that the commercial activity be “carried on in the United States by the foreign state,” the judges noted.

When the judges reached a conclusion to deny the Namib- ian plaintiffs permission to amend their claim, they felt that the proposed changes were not enough to improve the case’s chances of success. They said even if they ignore how long the Namibians had delayed filing their lawsuit and its effect on the Germans, the new allegations will still not bring the case into the court’s jurisdiction. “Neither the revised complaint nor the proposed supple- mental declaration sufficiently alleges that the expropri- ated property is currently present in the United States in connection with commercial activity. The repatriation of certain Hawaiian and Alaskan remains from Germany does not rise to the level of commercial activity, nor is it sufficiently related to the transfer of the AMNH remains a century ago. The terrible wrongs elucidated in Plaintiffs’ 10 complaint must be addressed through a vehicle other than the U.S. court system,” the court concluded.