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.”

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Detention and disappearance of Egyptian human rights lawyer Ibrahim Metwally Hegazy

Published: 07 November 2017 Author: Stefan Talmon

On 3 July 2013, the Egyptian military removed democratically elected President Mohammed Morsi from power and suspended the constitution. Since the military takeover of government and the assumption of the presidency by Field Marshall Abdel Fattah el-Sisi a year later, Egypt has seen a large-scale crackdown on dissent and the followers of former president Morsi. According to media reports hundreds have been killed, tens of thousands have been detained, and many have been forcibly disappeared.

In response to his own son vanishing in 2013, Egyptian lawyer Ibrahim Metwally Hegazy co-founded the Association of the Families of the Disappeared in Egypt. He also assisted the family of Giulio Regeni, an Italian PhD student who was found tortured and killed in Cairo in February 2016.

On 10 September 2017, Mr. Metwally Hegazy disappeared at Cairo International Airport before boarding a flight to Geneva, where he was to report on enforced disappearances in Egypt at the invitation of the United Nation Human Right’s Council’s Working Group on Enforced or Involuntary Disappearances. He reappeared two days later before the High State Security Prosecutor being charged with founding and leading an organization that was created illegally, spreading false news, and communicating with foreign entities in order to undermine national security. He has since been detained in the high-security wing of Egypt’s notorious Tora prison. (more…)

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The right to freedom of religion for the Baha’i in Iran

Published: 03 November 2017 Author: Stefan Talmon

The Federal Government has been concerned about the situation of the 300,000-member strong religious Baha’i community in Iran for many years. According to the United Nations Special Rapporteur on the situation of human rights in Iran more than 90 Baha’is are currently in detention in prison in the country. The Federal Government has taken a particularly strong interest in the fate of the seven members of the ad hoc Baha’i leadership committee who were arrested on 5 March and 14 May 2008. After being held for over two years without charge the seven were sentenced on 8 August 2010 to 20 years’ imprisonment each for espionage, propaganda against the government, collusion and collaboration for the purpose of endangering national security and spreading corruption. However, it was widely considered that the real reason for their imprisonment was the fact that they managed the religious and administrative affairs of their community.

On 12 May 2017, the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office issued the following statement on the detention of leading members of the Baha’i faith in Iran: (more…)

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Non-recognition of Catalonia’s unilateral declaration of independence

Published: 29 October 2017 Author: Stefan Talmon

Catalonia is an autonomous region within Spain with a strong independence movement. On 1 October 2017, the Catalan regional authorities held an independence referendum which had been declared illegal by the Spanish constitutional court. The Catalan authorities claimed that 90 percent of voters supported independence, but turnout was only 42.3 percent and there were reports of irregularities. On the evening of the referendum, Catalan regional President Carles Puigdemont, declared:

“With this day of hope and suffering, the citizens of Catalonia have won the right to an independent state in the form a republic. My government, in the next few days will send the results of today’s vote to the Catalan parliament, where the sovereignty of our people lies, so that it can act in accordance with the law of the referendum.”

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Violence against the Rohingyas in Myanmar’s Rakhine state

Published: 27 October 2017 Author: Stefan Talmon

The Muslim Rohingya are an ethnic minority who have lived for centuries in Myanmar’s western state of Rhakine. The Rohingya are denied citizenship in mainly Buddhist Myanmar and have been the object of repeated violent attacks by Buddhist nationalists and the State security forces. In a report released on 24 August 2017, the Advisory Commission on Rakhine State headed by former UN Secretary-General Kofi Annan identified the issue of citizenship rights as “a broad concern, and a major impediment to peace and prosperity in Rakhine.”

On 25 August 2017, Rohingya militants attacked police and army posts in the border region with Bangladesh killing several members of the security forces. These attacks led to a fresh outbreak of violence against the Rohingya in Rakhine state which caused hundreds of thousands of them to flee their homes and cross the border into Bangladesh. The government of Myanmar said it was fighting insurgents but those who fled said troops and Rakhine Buddhists are conducting a brutal campaign to drive them from their homes. They accused local Buddhist mobs, backed by government forces, of burning their villages. Myanmar’s government, on the other hand, claimed that the Rohingyas were burning their own homes.

Ob 6 September 2017, Germany condemned the violence in Myanmar and called for the repatriation of refugees as soon as possible. In a statement the Government said: (more…)

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Immunity of German diplomats in the United States

Published: 19 October 2017 Author: Stefan Talmon

German diplomats daughter stabs boy at school

On 5 September 2017 an incident in the Washington D.C. area attracted a fair bit of attention in the United States. The 12-year-old daughter of a member of the staff of the German  embassy in the United States stabbed a 13-year-old boy twice in the shoulder with scissors at the British Independent School in Georgetown. The boy had to be rushed off to hospital but the injuries were not life-threatening. A spokesperson for the Metropolitan Police Department declared:

“The suspect has been identified, however, because of her diplomatic status, there’s going to be no arrest at this time. Any questions regarding the diplomatic status can be referred to the State Department.”

There were also no criminal charges brought against the girl. A spokesperson for the German embassy stated that the embassy would conduct its own review. If it were discovered that the parents had contributed in any way to the stabbing, they could be subject to disciplinary action. (more…)

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Abolition of the death penalty

Published: 12 October 2017 Author: Stefan Talmon

On 10 October 2017, the World Day against the Death Penalty, the Foreign Minister of Germany together with his colleagues from Austria, Liechtenstein, Luxembourg, Slovenia and Switzerland, published the following opinion piece:

“Today, on this World Day against the Death Penalty, we reaffirm our commitment to the universal abolition of the death penalty.

On the positive side, we have been witnessing a worldwide trend towards restricting and abolishing the death penalty for decades. Of the 193 UN member states, only 36, or just under 20%, still apply the death penalty. Whereas the death penalty was still the rule in the 1980s, today it is the exception. This cruel form of punishment is now almost banished from Europe – with one exception. It is time for Belarus to also cease executions and free all of Europe from the death penalty – forever.

We note with concern, however, that some countries in the world are seriously discussing the reintroduction of the death penalty and that executions are being resumed in other countries after longstanding moratoriums. This is contrary to the global trend and to some extent contravenes international law. We call on all states to comply with their international obligations and respect the spirit of the International Covenant on Civil and Political Rights, which provides for a progressive abolition of the death penalty. (more…)

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Arbitration between Croatia and Slovenia

Published: 01 October 2017 Author: Stefan Talmon

Croatia and Slovenia have been engaged in a territorial and maritime dispute since 1991, when the two States seceded from the Socialist Federal Republic of Yugoslavia. On 4 November 2009, the governments of the two States signed an Arbitration Agreement by which they submitted their dispute to arbitration. As part of the agreement, Slovenia, which had been a member of the European Union since 1 May 2004, lifted its blockade of Croatia’s membership of the EU. Croatia joined the organization on 1 July 2013. The parties exchanged three rounds of written submissions and oral hearings were held in June 2014. During the deliberation stage of the proceedings it emerged that the arbitrator appointed by Slovenia and one of the two agents of Slovenia had colluded to influence the outcome of the arbitration. As a consequence, both the arbitrator appointed by Slovenia and the Slovenian agent resigned.

On 30 July 2015, Croatia notified Slovenia of the termination of the Arbitration Agreement in accordance with Article 60, paragraph 1, of the Vienna Convention on the Law of Treaties on the ground that Slovenia had engaged in one or more material breaches of the Arbitration Agreement. The next day, Croatia informed the Tribunal that it would no longer participate in the arbitration, as the arbitration process had been totally and irreversibly compromised. As a consequence, the arbitrator appointed by Croatia resigned. (more…)

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Death penalty not generally incompatible with ICCPR

Published: 30 September 2017 Author: Stefan Talmon

On 22 September 2017, Germany together with 60 other States co-sponsored a draft resolution on “The question of the death penalty” at the United Nations Human Rights Council. The sixteenth preambular paragraph of the resolution read:

Strongly deploring the fact that the use of the death penalty leads to violations of the human rights of the persons facing the death penalty and of other affected persons.”

The Russian Federation proposed an amendment providing that

“the use of the death penalty may in some cases lead to violations of the human rights of the persons facing the death penalty […].”

Rejecting the Russian amendment, the German representative stated in the Human Rights Council on 29 September 2017: (more…)

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The genocide in Namibia: genocide in a historical-political or in a legal sense?

Published: 23 September 2017 Author: Stefan Talmon

In 1904, the Herero and Nama tribes revolted against German colonial rule in the territory of today’s Namibia. The revolt was brutally crushed by imperial German troops. It is estimated that, between 1904 and 1908, some 65,000 Herero (80 percent of the tribe’s population) and some 10,000 Nama (50 percent of the tribe’s population) were killed, starved to death or died in camps. The events have been referred to as “the first genocide of the 20th century”.

While Germany acknowledged its “moral and historical responsibility to Namibia”, it has tried to avoid referring to the events as “genocide”. The German government has been fulfilling this responsibility through particularly close development cooperation. Thus, the amount of development aid received by Namibia from Germany has been the highest per capita in Africa.

On 29 June 2017, the German federal parliament, with the votes of the governing parties, rejected a motion which read, inter alia: (more…)

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