Suing Germany over the genocide in Namibia in U.S. courts: the pitfalls of serving a summons on the German Government

Published: 23 November 2017 Author: Stefan Talmon

On 5 January 2017, representatives of several Ovaherero and Nama organizations filed a class action complaint against Germany in the United States District Court for the Southern District of New York. They requested the court to award damages for genocide carried out more than a century ago by German colonial troops in today’s Namibia more than a century ago, and to declare that the exclusion of the plaintiffs and other lawful representatives of the Ovaherero and Nama people from the ongoing talks between the governments of Namibia and Germany about an official apology by Germany for the genocide and potential payments by Germany to Namibia constituted a violation of international law. The summary of complaint read in part:

“Plaintiffs bring this action on behalf of all the Ovaherero and Nama peoples for damages resulting from the horrific genocide and unlawful taking of property in violation of international law by the German colonial authorities during the 1885 to 1909 period in what was formerly known as South West Africa, and is now Namibia. Plaintiffs also bring this action to, among other things, enjoin and restrain the Federal Republic of Germany from continuing to exclude plaintiffs and other lawful representatives of the Ovaherero and Nama people from participation in discussions and negotiations regarding the subject matter of this Complaint, in violation of plaintiff’s rights under international law, including the U.N. Declaration on the Rights of Indigenous People to self-determination for all indigenous peoples and their right to participate and speak for themselves regarding all matters relating to the losses that they have suffered.”

On 27 January 2017, the plaintiffs applied to the court for a summons against Germany to be issued. As a result, the court ordered a pre-trial conference to be held on 16 March 2017 and issued a summons for Germany to appear in court on the date specified.

The first hurdle for the plaintiffs to overcome was to validly serve a copy of the summons and complaint upon Germany. Service of process on foreign States in the United States of America is governed by the Foreign Sovereign Immunities Act (FSIA) of 1976. Section 1608 of the Act provides:

“(a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular ServicesCand the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.”

The FSIA provides for service of process on foreign State defendants in a four-step hierarchical manner: if service cannot be made in accordance with 1608(a)(1), then service is to be attempted pursuant to 1608(a)(2) and so forth until the various methods of service are exhausted.

The plaintiffs tried on multiple occasions to serve the summons and complaint on the German embassy in Washington, D.C., both by mail and in person. The plaintiffs’ actions, however, were simply ignored by Germany. In March 2017, the German ambassador to Namibia declared that “Germany’s knowledge about this court case is solely based on media reporting”. The plaintiffs’ attorneys had overlooked that direct service on a foreign embassy in the United States or a State’s mission to the United Nations was not generally a method of service provided for in the FSIA. Service on the Germany embassy under section 1608(1)(1) of the FSIA would have required either a “special agreement” between the plaintiffs and Germany or for Germany to have generally designated its embassy in the United States as an agent for service of process of actions brought against the German government. Neither of the two requirements had been fulfilled. As Germany had not been properly served it did not appear at the initial pretrial conference on 16 March 2017. The pretrial conference was consequently adjourned to 21 July 2017.

The plaintiffs then attempted service under the second method of service provided for in the FSIA, that is, service in accordance with an applicable international agreement. The United States and Germany were both parties to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). Under the Convention, each Contracting State “shall designate a Central Authority which will undertake to receive requests for service [in civil and commercial matters] coming from other Contracting States” and “serve the document or shall arrange to have it served by an appropriate agency”. If a request for service does not comply with the provisions of the Convention the Central Authority must promptly inform the applicant and specify its objections to the request. In accordance with Article 18, paragraph 3, of the Convention, Germany designated one Central Authority for each Federal State. Upon ratification of the Convention, Germany declared that “requests for service must be submitted to the Central Authority of the Federal State where the request is to be effected”. As the summons and complaint were to be served on the German Government with its seat in the capital Berlin, the competent Central Authority was the Senate Office for Justice, Consumer Protection and Anti-Discrimination of the Federal State of Berlin. In order to effect formal service under the Hague Service Convention, plaintiffs had to translate the summons and complaint into German, and had to request the court to appoint an agent, as the authority and judicial officer competent under the jurisdiction of the United States district court, to forward to the competent Central Authority in Germany all documents to be served in the case. Upon request by the plaintiffs, the court on 7 April 2017 appointed Crowe Foreign Services, a legal and litigation support company, which on 21 April 2017 transmitted the judicial documents to the Senate Office for Justice in Berlin.

On 19 June 2017, the Senate Office for Justice in Berlin declined the request for service, stating:

“I herewith return the request for service specified in further detail above. Your request for service of a complaint to the Federal Republic of Germany cannot be accepted.

The proceedings pending in the United States District Court, Southern District of New York, assert damage claims associated with the conduct of the German Reich as a former colonial power in dealing with the plaintiffs’ tribes from the Federal Republic of Germany as the legal successor of the German Reich. Since the claims are derived from sovereign action (acta iure imperii) by agencies of the Federal Republic of Germany (or its legal predecessors), there is no civil or commercial matter as defined by Article I of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

Furthermore, compliance with a request for service may be refused in accordance with Article 13 of the Convention if the state addressed deems that compliance would infringe its sovereignty or security. Foreign courts are generally not authorized to decide about the legality of sovereign action by representatives of the public administration of the Federal Republic of Germany. Since the conduct of the German Reich described in the complaint is attributable to the exercise of sovereign government action, the international principle of sovereign immunity prevents the service in this case.

For the reasons cited above, I therefore reject your request for service dated April 21, 2017.

The service documents are attached in return.”

The third method of service under the FSIA, that is, the sending of the summons and complaint and a notice of suite by mail requiring a signed receipt to the German Minister of Foreign Affairs, was not available to the plaintiffs because Germany had formally objected to the sending of judicial documents by postal channels. Service by mail is not generally prohibited under customary international law. In particular, such service does not violate the territorial sovereignty of the State of destination where the summons is to be delivered. However, Germany had availed itself of the right under Article 10(a) and Article 21 (2)(a) of the Hague Service Convention to exclude the sending of judicial documents by postal channels. That exclusion was binding on the United States as a party to the Hague Service Convention.

As service on Germany could thus not be effected in time for the pretrial conference scheduled for 21 July 2017, the plaintiffs were forced to request an another adjournment so that “diplomatic service” could be attempted on the defendant. On 13 July 2017, the court accordingly ordered the adjournment of the conference to 12 October 2017.

Taking the final method available to the plaintiffs under the FSIA, the plaintiffs on 21 July 2017 asked the United States Department of State to send the summons and complaint and a notice of suit directly to the German Government under diplomatic cover. This process required a legal review of the papers by the Office of the Legal Adviser of the Department of State. Once that review was completed the documents were to be delivered by the U.S. Embassy in Berlin to the German Foreign Ministry. The State Department was then to send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted. As the Department of State indicated on 29 September 2017 that the request for diplomatic service was still in review, the plaintiffs were forced, once again, to request the adjournment of the pretrial conference. Asked whether Germany was taking part in the proceedings in New York scheduled for 12 October 2017 the spokesperson for the Foreign Office stated during the government press conference on 11 October 2017: “The Federal Government has not been summoned and does not appear there.” On 12 October 2017, the court in New York adjourned the conference to 25 January 2018.

On 15 November 2017, the U.S. Embassy in Berlin, under cover of diplomatic note No. 479, transmitted the amended summons, class action complaint, and notice of suit to the Federal Foreign Office. The diplomatic note read as follows:

“The Embassy of the United States of America presents its compliments to the Auswärtiges Amt and has the honor to refer to the lawsuit Rukoro, et al. v. Federal Republic of Germany, et al., 17-cv-00062 (LTS), which is pending in the United States District Court, Southern District of New York. The Federal Republic of Germany is a defendant in this case. The Embassy transmits an amended summons in a civil action, class action complaint, and notice of suit herewith. The U.S. District Court has requested the transmittal of these documents. This note constitutes transmittal of these documents to the Federal Republic of Germany as contemplated in Title 28, United States Code, Section 1608(a)(4).

Under applicable United States law a defendant in a lawsuit must file an answer to the complaint or some other responsive pleading within 60 days from the date of transmittal of the complaint, in this case the date of this note. Failing to do so, a defendant risks the possibility of having judgment entered against it without the opportunity to present arguments or evidence on its behalf. Therefore, the Embassy requests that the enclosed amended summons in a civil action, class action complaint, and notice of suit be forwarded to the appropriate authority of the Federal Republic of Germany with a view towards taking whatever steps are necessary to avoid a default judgment.

In addition to the amended summons in a civil action and class action complaint, the Embassy is enclosing a notice of suit prepared by the plaintiff, which summarizes the nature of the case and includes references to pertinent U.S. laws concerning suits against foreign States.

Under U.S. law any jurisdictional or other defense, including claims of sovereign immunity, must be addressed to the court before which the matter is pending, for which reason it is advisable to consult an attorney in the United States. Otherwise, proceedings will continue without an opportunity to present arguments or evidence. It is the practice of the U.S. Department of State to be available to discuss the requirements of U.S. law with counsel. The United States Government is not a party to this litigation and cannot represent other parties in this matter.

The Embassy of the United States of America takes this opportunity to renew to the Auswärtiges Amt the assurance of its highest consideration.”

With the receipt of this diplomatic note and the accompanying court documents, service of process was deemed to have been validly effected both under U.S. law and international law. Nevertheless, on 21 November 2017, the Federal Foreign Office sent a diplomatic note to the U.S. Embassy in Berlin returning the court documents that had been served upon it. The diplomatic note read as follows:

“The German Foreign Office presents its compliments to the Embassy of the United States of America and returns, without any action taken, the class action complaint and notice of suit, which have been submitted under cover of Note Verbale Number 479, dated November 15. 2017, and requests to have the documents pertaining to Docket No. I 7-cv-00062 (L TS) returned to the U.S. District Court for the Southern District of New York.

This case does not concern any economic activity of the Federal Republic of Germany. Indemnity claims in connection with acts committed by the German Empire, as a former colonial power, towards the ethnic groups of the plaintiffs, are being asserted against the Federal Republic of Germany, as the legal successor of the German Empire. In doing so, the claim derives from sovereign acts (acta iure imperii) by the legal predecessors of the Federal Republic of Germany. In addition, plaintiffs seek legal recognition to be able to participate in government negotiations on the late effects of colonialism, whereby the underlying facts are also of sovereign nature (acta iure imperii).

The service violates the sovereign immunity of the Federal Republic of Germany, and thus, will be rejected.

The Federal Republic of Germany does not intend to submit to the jurisdiction of the United States. Therefore, the service of documents under cover of the above mentioned Note Verbale is not considered legally valid.

The German Federal Foreign Office takes this opportunity to renew to the Embassy of the United States of America the assurance of its highest consideration.”

While section 1608 of the FSIA does not contemplate the use of the diplomatic channel as a means for defendant foreign States to respond to service of process, it is the practice of the U.S. Department of State to provide the sending court with any documents received in reply via the diplomatic channel. By letter, dated 4 January 2018, the U.S. State Department thus transmitted the Federal Foreign Office’s diplomatic note to the Court.

The Federal Foreign Office was mistaken when it stated that the “service violates the sovereign immunity of the Federal Republic of Germany” and that, because Germany did not intend to submit to the jurisdiction of the United States, “the service of documents under cover of the above mentioned Note Verbale is not considered legally valid.” Immunity from jurisdiction does not mean immunity from service of process. This becomes clear from the fact that relevant conventions on State immunity expressly provide for service of process on foreign defendant States. Defendant States cannot escape service of process by returning the court documents transmitted by diplomatic channel. It may well be argued that the Federal Foreign Office was obliged to receive the documents. For example, the Explanatory Report to the European Convention on State Immunity states with regard to the transmission of court documents to the foreign defendant State:

“The Foreign Ministry is obliged to accept writs served on it even if it believes that the proceedings brought against the State are unjustified, that the court is not competent to entertain the proceedings, or that the defendant State may claim immunity. On the other hand, by accepting the documents, the defendant State in no way renounces its right to invoke its grounds of defence or to claim immunity.”

In any case, the return of the court documents by the Federal Foreign Office could not affect the validity of service under section 1608(a)(4) of the FSIA with all ensuing consequences. In a comparable case in 2009, the U.S. State Department had returned court documents served on it by the British Embassy in Washington, D.C. This did not prevent the English High Court from ruling that service on the State Department had been validly effected for the purposes of the proceedings.

The Namibian genocide claim illustrates that in cases concerning sovereign acts (acta jure imperii), such as the conduct of soldiers, Germany, absent any special agreement with the plaintiff, cannot be summoned before courts in the United States without the involvement of the U.S. Department of State. The only method of service of a summons and complaint available to plaintiffs is service by diplomatic channel.

During the initial pretrial conference on 16 March 2017, attorney for the plaintiffs declared that “the matter is somewhat of urgency” because of the ongoing negotiations between the governments of Germany and Namibia. Against this background, one wonders whether a delay of more than one year between the filing of the complaint and the first pretrial conference is the result of ignorance or incompetence on the part of the plaintiffs’ attorneys, or part of the plaintiffs’ litigation strategy. This was not the first time that Herero organizations turned to U.S. courts to claim damages under the Alien Tort Statute and federal common law for Imperial Germany’s atrocities against their tribe. All these claims were dismissed either for failure to state an actionable claim or for lack of subject matter jurisdiction. The current case is also likely to be dismissed, especially considering the United States Supreme Court’s recent ruling in the case of Kiobel v. Royal Dutch Shell that the Alien Tort Statute does not apply extraterritorially unless the claims touch and concern the territory of the United States. The plaintiffs’ real motive seems to have been not so much to win the case as to attract and maintain media attention, and to portray Germany as a State refusing to appear in court to answer the plaintiffs’ complaint. Commenting on the adjournment of the pretrial conference in July 2017, one of the plaintiffs, Ovaherero Paramount Chief Vekuii Rukoro, said at a press conference:

“Germany will try to exhaust all tricks available to it to avoid taking accountability for the genocide it committed against the Namas and Hereros in our country. Hence the unnecessary delaying tactics which are prolonging the inevitable adjudication of our complaint by the court. […] Germany has every reason to be worried about facing us in court. They can run but they cannot hide. The card they have played is the last card.”