Background

The AC recites in extensive detail the sequence of events that culminated in the brutal exploitation, enslavement, and extermination of substantial numbers of the Ovaherero and Nama peoples. The following abbreviated recitation of relevant facts is drawn from the AC, the well-pleaded factual content of which is taken as true for purposes of this motion practice.

Plaintiffs are U.S. and non-U.S. citizens who are members, or direct descendants of members, of the Ovaherero and Nama indigenous peoples. (AC ¶ 316.) From approximately 1884 to 1903, German colonial authorities arrived in what was then known as German South West Africa and began to occupy and seize Ovaherero and Nama land, livestock, personal property, and natural resources using violence and coercion. (AC ¶¶ 5, 69-93.) Through various decrees and ordinances, German authorities forced the relocation of the Ovaherero and Nama peoples and seized multiple tracts of ancestral land. (AC ¶¶ 88-89, 92.) Deprived of their homes and livelihoods, many Ovaherero and Nama people were forced into debt and slavery. (AC ¶¶ 89, 94.)

In 1904, the German Empire began a violent campaign to exterminate the Ovaherero and Nama peoples. (AC ¶¶ 99, 102-145.) Under the leadership of German military commander Adrien Dietrich Lothar von Trotha, German troops captured and lynched countless Ovaherero men, women, and children. (AC ¶¶ 105-106, 119-120.) In one particularly gruesome incident, German troops massacred thousands of unarmed and vulnerable Ovaherero members who had gathered in the town of Waterberg for the purpose of surrendering to German forces. (AC ¶¶ 107-112.) Those who survived or managed to escape the German forces were driven to the Omaheke Desert to die of starvation and thirst. (AC ¶¶ 114-115, 118.) As one German lieutenant observed: “There's a path that leads out of Onduru towards Omuramba. Alongside the path are human skulls, rib cages, and thousands of fallen cattle and other livestock. This is the path on which the Ovaherero fled.... Everything suggests this was a march of death.” (AC ¶ 124.) German troops carried out a similar campaign against the Nama people, calling for members to surrender on pain of death. (AC ¶¶ 143-144.)

*2 In 1905, the German imperial government ordered all surviving Ovaherero and Nama peoples to report to shelters from which they were transported to concentration camps. (AC ¶¶ 129-130, 145.) At these camps, Ovaherero and Nama people were treated as property, rented out as laborers and, ultimately, worked to death. (AC ¶¶ 148, 150-152.) Women and children in the camps were raped and sexually abused. (AC ¶ 154.) At a concentration camp located on Shark Island, Plaintiffs allege, hundreds of Ovaherero and Nama bodies were dissected for medical research, and hundreds more men, women, and children were brutally murdered and decapitated so that their remains could be studied by researchers who believed in the superiority of the white race. (AC ¶¶ 167-176.)

In 1985, the United Nations Economic and Social Council Commission on Human Rights issued a report classifying the events described in the AC as a genocide. (AC ¶ 271); see also Special Rapporteur to Sub-Comm'n on Prevention of Discrimination & Prot. Of Minorities, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide ¶ 24, U.N. Doc. E/CN.4/Sub.2/1985/6 (July 2, 1985) (by Benjamin Whitaker). In recent years, Germany has begun negotiations with the government of Namibia regarding the events described in the AC. (AC ¶ 288.) Plaintiffs have not been invited to participate in those negotiations. (AC ¶ 289.)

Plaintiffs seek damages for the genocide pursuant to the Alien Tort Statute, federal common law, and the law of nations (AC ¶¶ 327-332), damages for conversion of various property rights (AC ¶¶ 333-370), damages for unjust enrichment (AC ¶¶ 371-373), an accounting (AC ¶¶ 374-375), the establishment of a constructive trust (AC ¶¶ 376-377), and declaratory relief recognizing Plaintiffs as the “legitimate successors to sovereign nations” and declaring that the exclusion of Plaintiffs from negotiations between Germany and Namibia constitutes a violation of Plaintiffs' rights under international law, including the United Nations Declaration on the Rights of Indigenous Peoples (AC ¶¶ 378-382). Plaintiffs also seek injunctive relief prohibiting Germany from continuing to exclude Plaintiffs from its negotiations with Namibia. (AC at 91.)

In aid of their argument that jurisdiction exists pursuant to one or more of the enumerated exceptions under the FSIA, Plaintiffs allege that many of the Ovaherero and Nama skulls and body parts used for medical experiments remain in Germany's possession (AC ¶ 222), and that certain human remains have been transported to the American Museum of Natural History (“AMNH”) in New York City (the “AMNH Remains”) (AC ¶¶ 297-300). Plaintiffs aver that the AMNH Remains “were originally collected by Professor Felix von Luschan, a German anthropologist and ethnologist at the Museum for Ethnology in Berlin from 1995-1910,” and then remained a part of von Luschan's “private collection” until his widow sold the collection to the AMNH after von Luschan's death in 1924. (AC ¶¶ 298-299.) In addition to the AMNH Remains, Plaintiffs allege that one of the few surviving copies of the “Blue Book,” a record of the genocide prepared in 1918, is located at the New York Public Library (AC ¶¶ 302-303), and that New York “has become one of the leading research and conference centers for the study of the Ovaherero/Nama genocide” (AC ¶¶ 304-307).

Plaintiffs also allege that land, livestock, and other personal property seized by German colonial authorities was either sold or leased to settlers or other private parties, and that all proceeds from those transactions were deposited into the German treasury. (AC ¶¶ 179-180, 182-86.) Plaintiffs aver that Germany further profited from these seizures by imposing and collecting fees, customs, tariffs and taxes on exports, mining operations, railway construction, and other ventures in German South West Africa. (AC ¶¶ 188-206.) The AC alleges that “[u]pon realization of the benefits achieved by its takings of Ovaherero and Nama property ... [Germany] commingled these fungible values within its general Imperial treasury and departmental treasuries of various Imperial ministries, agencies, and instrumentalities.” (AC ¶ 249; see also AC ¶¶ 250-55, 258.) Plaintiffs contend that portions of these commingled funds were used to purchase four real estate properties in New York City: (1) a townhouse located at 119 East 65th Street, (2) a building located at 871 First Avenue, (3) a condominium located at 346 East 49th Street, and (4) a building located at 1014 Fifth Avenue (collectively, the “New York Properties”). (AC ¶ 259.) The AC alleges that each of the New York Properties is “used in connection with [Germany's] commercial activities” including, among other things, the “performance and existence of contractual obligations related to the housing of German officials and employees,” the “performance and existence of contractual obligations related to contracts for maintenance, restoration, cleaning, and other services provided by contractors located in New York City,” and “cultural propagation, German-language programs, and other programs to develop American interest in the German people, language, culture, and country with the ultimate goal of commercial growth through cultural growth.” (AC ¶¶ 261, 263, 265, 269.)