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Hereros v. Deutsche Afrika-Linien GMBLT & Co.

Court United States Court of Appeals for the Third Circuit, United States
Case number 06-1684
Decision title Opinion of the Court
Decision date 10 April 2007
  • Hereros
  • Deutsche Afrika-Linien GMBLT & Co.
Categories Crimes against humanity, Genocide
Keywords Genocide; crimes against humanity; accountability (private contractors)
Other countries involved
  • Namibia
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Members of the Herero (the Hereros), an African tribe from Namibia, brought a claim against German company Deutsche Afrika-Linien GmbH & Co. The Hereros claimed that this company used slave labor and ran its own concentration camp during Germany’s occupation of South Africa in the late 19th- and early 20th- century. The Hereros sued the German company for damages suffered during the occupation.

The case was dismissed by the District Court because the Hereros failed to state a claim in their complaint. On 10 April 2007, the dismissal was affirmed by the Court of Appeals.

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Procedural history

In 2001, members of the Herero tribe of Namibia filed a complaint for $2 billion in the Superior Court of the District of Columbia, which was later removed to the District Court for the District of Columbia. Plaintiffs alleged that Imperial Germany committed slavery, and crimes against humanity against the Herero in the late 19th- and early 20th- century when it occupied South Africa. The plaintiffs accused Deutsche Bank, Terex Corporation, and Woermann Line (now known as Deutsche Afrika-Linien GmbH &Co.) of participating in the atrocities and sought damages from them.

On 31 July 2003, the District Court held that plaintiffs had failed to state a cause of action and dismissed the claim. Plaintiffs appealed this decision.

On 11 June 2004, the Court of Appeals for the District of Columbia affirmed the District Court’s dismissal because of appellants’ failure to bring an actionable claim.

The appellants appealed to the U.S. Supreme Court, which on 15 November 2004 denied certiorari to hear the case.

The case against Deutsche Bank was subsequently refiled in the District Court for the Southern District of New York, but was dismissed in April 2006 since the case was substantially the same as the previous case upon which a judgment had already been given.

The case against Deutsche Afrika-Linien GmbH &Co. was subsequently refiled in the District Court for the District of New Jersey. In January 2006, the District Court dismissed the claim by concluding that appellants failed to raise a valid cause of action under the Alien Tort Statute (ATS). Appellants appealed this decision.

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Legally relevant facts

According to the complaint filed in 2001, Deutsche Afrika-Linien GmbH & Co., the defendant in this case, jointly financed the German colonial government and companies linked to Germany’s colonial rule (1884-1919) in Southwest Africa, now known as Namibia. The claimants alleged that the defendant, as well as Deutsche Bank and Terex Corporation, in alliance with Imperial Germany:

‘relentlessly pursued the enslavement and the genocidal destruction of the Herero Tribe […] Foreshadowing with chilling precision the irredeemable horror of the European Holocaust only decades later, the defendants and Imperial Germany formed a German commercial enterprise which cold-bloodedly employed explicitly-sanctioned extermination, the destruction of tribal culture and social organization, concentration camps, forced labor, medical experimentation and the exploitation of women and children in order to advance their common financial interests’.

The events giving rise to the claim largely took place between 1904 and 1907 when, in response to an uprising against German colonial rule, the German Schutztruppe (colonial troops) perpetrated atrocities allegedly causing the deaths of some 80% of the Herero population, according to the 1985 UN Whitaker Report.

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Core legal questions

Did the District Court for the District of New Jersey err in dismissing appellants’ claim on the ground that they failed to raise a valid cause of action under the Alien Tort Statute? (p. 4)

Did the District Court err in holding that the applicable statute of limitations had passed? (p. 4)

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Specific legal rules and provisions

United States Code, 2006:

  • Title 28, Chapter 28, Section 1291

Federal Rules of Civil Procedure, 2006, United States:

  • Rule 12(b)(6) - Defenses and Objections
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Court's holding and analysis

The first ground of appeal concerned the holding of the District Court that the complaint failed to state a claim.

In deciding on this ground, the Court of Appeals for the Third Circuit held that it should be very cautious in creating a new cause of action under the ATS. Referring to the Sosa v.Alvarez-Machain case, the Court held that the ‘creation of private rights of actions is best left to the legislature’ (p. 7). In this regard, it was particularly emphasised ‘that there should be no discretionary power for the federal judiciary to create causes of action for the enforcement of international law-based norms […]’ (p. 8).

The Court held that although it ‘inclined to believe that the conduct alleged by Appellants did violate international norms at the time it occurred, a mere inclination does not support a cause of action’ (p. 9). Moreover, it held that courts should not exercise substantial judicial discretion over conduct that occurred about a century ago in order to create a cause of action (pp. 9-10).

Furthermore, the Court held that the foreign policy decisions which form the basis of the case were not appropriate for judicial review (p. 10). In addition, the Court held that there were no ‘judicially discoverable or manageable standards’ for deciding on a case involving about 125,000 plaintiffs (p. 10).

Finally, the Court held that, although it recognised the gravity of the crimes described by the appellants, deciding on them would lead to opening ‘the door to claims by countless aggrieved groups for human rights violations’, a consequence that is contrary to the intention of the drafters of the ATS (p. 11).

Based on the foregoing arguments, the Court dismissed the first ground of appeal, and did, therefore, not address the second ground of appeal concerning the passing of the statute of limitations. Accordingly, the decision of the District Court was affirmed because the complaint failed to state a claim.

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Further analysis

J.B. Gewald, ‘Imperial Germany and the Herero of Southern Africa: Genocide and the Quest for Recompense’, in: A. Jones (ed.), Genocide, war crimes and the West: history and complicity, London: Zed Books 2004, pp. 59 – 77.

R. J. Anderson, ‘Redressing Colonial Genocide Under International Law: The Hereros’ Cause of Action Against Germany’, California Law Review, Vol. 93(4), 31 July 2005, pp. 1155-1190.

A. D. Cooper, ‘Reparations for the Herero Genocide: Defining the limits of international litigation’, African Affairs, Vol. 106, January 2007, pp. 113-126.

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Instruments cited

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Related cases

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Additional materials

German cos. lawsuit (by Hereros)’, Business & Human Rights Resource Centre.

Namibia: Herero People's Reparations Corporation et al. v. Deutsche Bank, Terex Co. (Orenstein-Koppel) and Woermann Line (Deutsche Afrika-Linien GmbH & Co.)’, Justice in Perspective.

A bloody history: Namibia's colonisation,BBC News, 29 August 2001.

D. Bartlett, ‘German bank accused of genocide’, BBC News, 25 September 2001.

Germany admits Namibia genocide’, BBC News, 14 August 2004.

B. Weidlich, ‘Time now to heal the wounds’, The Namibian, 5 October 2007.

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Social media links

NAMIBIA: Germany's Herero reconciliation efforts rebuffed’, Irin Africa, 2 December 2005.

German Firms Seek Dismissal of Herero Legal Suit’, Sadocc, 6 June 2002.