Germany not answerable in U.S. courts for alleged colonial genocide

Published: 09 December 2020 Author: Stefan Talmon

On 24 September 2020, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action brought by representatives of several Ovaherero and Nama organizations against the Federal Republic of Germany. The plaintiffs had sought damages for the enslavement and genocide of the Ovaherero and Nama peoples more than a century ago by German colonial troops in what is now Namibia, as well as for property they alleged imperial Germany expropriated from the land and peoples. The judgment brought an end to legal proceedings that lasted more than three years and nine months.

The class action was initially filed in the U.S. District Court for the Southern District of New York (S.D.N.Y.) on 5 January 2017. The plaintiffs claimed that they and other lawful representatives of the Ovaherero and Nama peoples had been excluded from ongoing talks between the governments of Namibia and Germany about an official apology from Germany for the genocide and potential payments by Germany to Namibia. They accordingly asked the court to declare that this exclusion constituted a violation of international law, as well as requesting an award of damages. 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 plaintiffs’ 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 District 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.

Germany’s first line of defence: stalling the proceedings

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 Services—and 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, the 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 District 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 to the German Minister of Foreign Affairs of the summons and complaint and a notice of suit by mail requiring a signed receipt– 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 another adjournment so that “diplomatic service” could be attempted on the defendant. On 13 July 2017, the District 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 District Court 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 derived 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.”

This view was also echoed in a statement issued by the German Embassy in Windhoek, which read as follows:

“The Government of the Federal Republic of Germany is aware of the fact that some members of the Herero and Nama communities in Namibia have filed a legal action against Germany with a District Court in New York.

However, when service was attempted on November 15, 2017, the Federal Republic of Germany rejected the service of this action – via the U.S. State Department and the U.S. Embassy Berlin because the service of the complaint on a foreign State violates the principle of ‘State Immunity’ – a core principle of public international law. According to this principle domestic courts do not have jurisdiction over sovereign acts of foreign States.

Following the United States law of procedure Germany has informed the court about Germany´s legal position in writing.

Beyond that, Germany never comments on any pending legal action against Germany. This also applies to the case in question.”

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 District Court.

The Federal Foreign Office, however, 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.

Second line of defence: motion to dismiss for lack of jurisdiction

Valid service of the court documents by diplomatic means meant that under U.S. law Germany had 60 days – until 14 January 2018 – to file a response with the District Court and serve a copy of its response upon plaintiffs’ counsel, or face the risk of a default ruling for the remedies sought. On 12 January 2018, counsel for Germany moved to dismiss the complaint, inter alia, for lack of subject matter jurisdiction because the defendant was immune from the jurisdiction of the courts of the United States pursuant to the Foreign Sovereign Immunities Act. Under the FSIA, foreign States are generally immune from the jurisdiction of U.S. courts, unless one of the FSIA exceptions to immunity applies. The plaintiffs relied on the FSIA’s commercial activities and takings or expropriation exception. The requirements of the two exceptions are set out in 28 U.S.C. § 1605(a)(2) and (3) which provide in the pertinent parts:

“(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case –

(2) in which the action is based upon […] an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state […].”

Counsel for Germany submitted that the exceptions did not apply in the present case. In particular, counsel relied on the doctrine of intertemporal law, arguing that today’s international law was not identical to the international law applied over 110 years ago and could not be applied to the case at hand. At the relevant time, the Ovaherero and Nama peoples were residents of German South West Africa – a German colony and integral part of the German Empire – and subject to German domestic law. The alleged expropriation was a part of Germany’s sovereign regulation of property within its territory and as such did not violate international law applicable at that time. In fact, the expropriation by a sovereign State of the property of its own nationals did not implicate settled principles of international law at all. The alleged expropriation also could not be part and parcel of the alleged genocide of the Ovaherero and Nama peoples as the legal concept of genocide did not apply in this case, which concerned events that took place in the period between 1885 and 1909. Genocide as a violation of international law had first been defined as a legal concept by the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, which was not retroactively applicable to alleged atrocities that took place some 40 to 60 years before. There was also no question of a violation of international humanitarian law, as the rules of war of the time were only applicable to conflicts between States and were not applicable to the Ovaherero and Nama peoples.

An initial pretrial conference, lasting for only 10 minutes, was held on 25 January 2018. The next day, during the regular government press conference, the spokesperson for the Federal Foreign Office stated with regard to the court proceedings in New York:

“Our legal position on this very lawsuit is that it is inadmissible because of the principle of State immunity. In accordance with U.S. law it was necessary to formally convey this to the court. We did this through a lawyer. Thus, there was no pleading on the merits of the case; we have rather expressed our general legal position.”

In April 2018, the Federal Foreign Office commented once again on the lawsuit in New York, stating:

“In the Federal Government’s opinion, this type of lawsuit is inadmissible because it is in breach of the principle of State immunity, which prohibits taking legal action against a country in another country’s courts. Above all, the German Government firmly believes that over 100 years after the events, the past can only be addressed politically and not by legal means.”

A one-hour hearing in the case was held on 31 July 2018. The hearing mainly focused on the requirements of the FSIA’s takings exception and, in particular, the question of whether the property allegedly taken by the German Empire from the Ovaherero and Nama peoples, or property exchanged for the taken property, was present in the United States in connection with commercial activity being carried on by Germany in the United States. Plaintiffs had argued in their amended complaint:

“A portion of Defendant’s enormous wealth is attributable to, was exchanged for, and can be traced from the property it took from the Ovaherero and Nama peoples in violation of international law. Defendant has invested this wealth worldwide with a particularly large investment in the city and state of New York. Defendant’s investments in New York City constitute property exchanged for the property taken in violation of international law and which were derived from a portion of Defendant’s commingled funds. This property is present in New York City in connection with commercial activities carried on in the United States by Defendant.”

Counsel for Germany objected, arguing that plaintiffs had not properly shown that property allegedly taken from the Ovaherero and Nama peoples could be traced to property present in the United States. Counsel stated:

“What the plaintiffs allege is that property was taken in the 1880 to 1910 period. It was converted into cash. Although, they don’t say how but they allege that. It was put into the German treasury and that today we fast forward to more than a hundred years later and there are four buildings in New York that are owned by the Federal Republic of Germany and somehow some of that money taken in the 1880s is present in those buildings. […]

For example, there are two intervening world wars in which Germany was absolutely bankrupt. So, if we’re claiming some of the funds that were taken in 1880 still existed in the coffers of Germany so that they could be invested in the consulate that was built at the UN, I would say to you that that is simply not true. And where they argue tracing they haven’t done the tracing or alleged the tracing in sufficient factual detail to allow you to find that that tracing has occurred.”

On 6 March 2019, the District Court (Swain, J.) upheld the principle of State immunity and dismissed the action against Germany for lack of subject matter jurisdiction under the FSIA. While the District Court found with regard to the FSIA’s takings exception that plaintiffs had sufficiently alleged that property exchanged for the property taken from the Ovaherero and Nama peoples was present in the United States, they had failed to allege that that property was present “in connection with a commercial activity” carried on by Germany in the United States. On the contrary, the New York properties – a private residence for Germany’s diplomats, Germany’s mission to the United Nations, its consulate general, and a property to house the German Academic Exchange Service, the Goethe Institute, and the German Academy of Art – were used for “activities that are ordinarily considered governmental”, including cultural exchange and arts programmes. The Court also held that the FSIA’s commercial activities exception was inapplicable because plaintiffs’ claims were not sufficiently “based upon” an act outside the territory of the United States in connection with a commercial activity, and because plaintiffs had failed to allege facts sufficient to support their allegation that Germany’s acts of expropriation caused a “direct effect in the United States.”

On 11 March 2019, the plaintiffs appealed the judgment of the District Court dismissing their claim. Without a further hearing, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal. In its judgment of 24 September 2020, the Court of Appeals endorsed the District Court’s reasoning with regard to the commercial activities exception. With regard to the takings exception, the Court of Appeals agreed with the lower courts ultimate conclusion but adopted a different reasoning. The three-judge panel found 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. The Court held:

“Plaintiffs alleged that Germany’s New York properties constitute “property exchanged for [expropriated] property” that is present in the United States. […] The conclusory allegations in the amended complaint simply do not suffice to make a valid argument that property converted into currency and comingled with other monies in Germany’s general treasury account can be traced to the purchase of property in New York decades later. […] Such allegations may satisfy a plausibility standard, but not a valid argument standard. There may be circumstances where it is possible to trace the proceeds a sovereign received from expropriated property to funds spent on property present in the United States, but such circumstances are not present here.”

Despite vowing to “continue fighting”, the plaintiffs did not try to challenge the Court of Appeals’ judgment. They neither petitioned the Court of Appeals for a rehearing of the case en banc, nor did they apply to the Supreme Court for a writ of certiorari. The judgment thus became final and definitive.

This was not the first time that Ovaherero organizations turned to U.S. courts to claim damages 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 ruling was thus predictable. The plaintiffs’ real motive seems to have been not so much to win the case as to attract and maintain media attention for their cause. They may derive some support for their claim for damages from the Court’s statement that the “terrible wrongs elucidated in Plaintiffs’ complaint must be addressed through a vehicle other than the U.S. court system.” Overall, however, the Court’s judgment has weakened Namibia’s position in its negotiations with the German Government over a political declaration in which Germany apologizes and promises redress for the atrocities committed during colonial rule.

Category: State immunity

 

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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