22Hanne Leßau, Conference Report, 'Entschädigung als Menschenrecht? Theorie und Praxis des Umgangs mit den Opfern kollektiver Gewalt', organizer Constantin Goschler, in H-Soz-Kult (16 October 2012), available at http://www.hsozkult.de/conferencereport/id/tagungsberichte-4412>. Cf Andreas von Arnauld, chapter 'Deadlocked in Dualism', in this volume.

23ICJ, Jurisdictional Immunities (n 1), para 104.

Germany had refused to recognize, particularly since those victims had thereby been denied the legal protection to which that status entitled them.' 24

The 'surprise' relates to an ex post recognition of protection duties for the only purpose of denying compensation. Adolf Hitler's order of 20 September 1943 commanded the deportation to the German Reich of the captured Italian Military Internees (IMIs) as forced labour force for the production of arms and for the construction of the so called 'South-East Wall'. 25 This was a deliberate violation of Article 31 of the Geneva Convention on the Treatment of Prisoners of War of 1929: 'Work done by prisoners of war shall have no direct connection with the operations of the war. In particular, it is forbidden to employ prisoners in the manufacture or transport of arms or munitions of any kind, or on the transport of material destined for combatant units.' 26 Furthermore, contrary to international humanitarian law, any assistance from the Red Cross was denied and fundamental social rights to adequate food and health services were violated.27 The IMIs were mishandled and treated as traitors by both German military forces and German civilians as well as by Italian fascists. Most of the captured did not actively resist, and a large number was subjected to forced 'conscription' by German troops. When the workers in what was then the occupied northern-Italian territory went on strike, Joachim Ribbentrop ordered the leaders to be killed as 'communists' and, with an eye towards deterrence, ordered that other thousands be deported as 'IMIs'. 28 When Hitler decided to transform their status into a sort of fictitious 'private' labour force, a concession to both Fritz Sauckel29 and Benito Mussolini's non-sovereign Republic of Salò, they lost their status as military personnel under Italian law and were considered not victims of slavery under Article 600 of the Italian Criminal Code but 'collaborationists'. At the end of the war, the Allied Forces qualified them as 'ex allied of the enemy', with the consequence that their return to Italy was delayed. Their ex post recognition as war prisoners came first from the Italian Republic (1945)—with regard to the period from 8 September 1943 to 1 September 1944 and later by Germany (2001) with regard to the remaining periods, even though the

24Ibid, para 99.

25Cf Keitel Order quoted in Christian Tomuschat, 'Leistungsberechtigung der Italienischen Militärinternierten nach dem Gesetz zur Errichtung einer Stiftung "Erinnerung, Verantwortung und Zukunft"?—Rechtsgutachten' (2001), available at http://www.berliner-geschichtswerkstatt.de/ zwangsarbeit/imi/imi-tomuschat-gutachten.pdf, 1–37, at 2. See Jean Allain, Slavery in International Law—Of Human Exploitation and Trafficking (Leiden: Brill, Nijhoff 2012), 261.

26Art 31 of the Geneva Convention relative to the Treatment of Prisoners of War, 27 July 1929, 47 Stat 2021, TS No 846.

27See 'Bericht der Deutsch-Italienischen Historikerkommission' 2012 (n 9), 133.

28Joachim Ribbentrop to German Embassy, December 1944, quoted in Erich Kuby, Verrat auf Deutsch—Wie das Dritte Reich Italien ruinierte (Frankfurt: Ullstein Sachbuch 1987), 449.

29The official reconstruction of the commission of historians on the IMIs seems to be not yet sufficient, neither on the legal qualifications nor on the facts—for example regarding the forced conscription to military service and labour pushed by Sauckel. See Ulrich Herbert, Hitler's Foreign Workers: Enforced Labor in Germany under the Third Reich (Cambridge: CUP 1997), 286.

recognition was exclusively for the purpose of excluding them from any social benefits.

The ICJ's 'regret' implies a clear moral condemnation of both the deportation of IMIs to forced labour camps and their lack of compensation thereof. This neither includes nor excludes a legal qualification as war crime, a violation of ius cogens, or a duty to individual compensation. The judges sitting in the ICJ did not only express their own personal concern, they also tried to embody those common human values shared by all civilized nations by adding a second obiter dictum:

[T]he Court is not unaware that the immunity from jurisdiction of Germany in accordance with international law may preclude judicial redress for the Italian nationals concerned. It considers however that the claims arising from the treatment of the Italian military internees referred to in paragraph 99, together with other claims of Italian nationals which have allegedly not been settled—and which formed the basis for the Italian proceedings—could be the subject of further negotiation involving the two states concerned, with a view to resolving the issue.30

The ICJ opted for 'could be' because 'should be' would have been seen as a declaration ultra vires, considering that its Order of 6 July 2010 had already declared inadmissible a counterclaim presented by Italy regarding the reparation owed to Italian victims of grave violations of international humanitarian law committed by the armed forces of the German Reich. The ICJ could not condemn Germany to 'offer appropriate and effective reparation to these victims, by means of its own choosing, as well as through the conclusion of agreements with Italy'. 31

Nevertheless, the clear moral condemnation in paragraph 99 of the ICJ Judgment could, in the long run, prove to be even stronger than a formal legal condemnation. Germany's book of legal debts may well be closed, the book of moral responsibility, however, could remain open-ended.

#### IV. The Imperfect Lump Sum Agreements of 1961

When taking into consideration exemptions from state immunity, the ICJ mentions the lump sum agreements and Germany's strongest prima facie objection:

Moreover, if a lump sum settlement has been made—which has been the normal practice in the aftermath of war, as Italy recognizes—then the determination of whether a particular claimant continued to have an entitlement to compensation would entail an investigation by the court of the details of that settlement and the manner in which the State which had received funds (in this case the State in which the court in question is located) has distributed those funds. Where the State receiving funds as part of what was intended as a comprehensive settlement in the aftermath of an armed conflict has elected to use those funds to rebuild

30ICJ, Jurisdictional Immunities (n 1), para 104.

31ICJ, Jurisdictional Immunities of the State (Germany v Italy), Counter-Claim, Order of 6 July 2010, ICJ Reports 2010, 310, para 3.

its national economy and infrastructure, rather than distributing them to individual victims amongst its nationals, it is difficult to see why the fact that those individuals had not received a share in the money should be a reason for entitling them to claim against the State that had transferred money to their State of nationality.32

From the opposite Italian point of view, the 'questions settled through the 1961 Agreements were (...) limited to, on the one hand, the pending economic questions to be identified merely as those covered by the 1947 waiver clause, and, on the other, compensation to victims of National Socialist persecution'. That implied three objections: first, the waiver of Article 77(4) of the Peace Treaty of 194733 was not approved by Germany under Article 34 or 36 of the Vienna Convention of 1969 and was referred only to property-related questions, not to labour-based claims; second, the agreements of 1961 concerned only the most important 'specific claims', 34 not all the reparations delayed to a final examination under Article 5(2) of the London Debt Agreement of 1953;35 and third, the civilian massacres, deportation, and forced labour were not specific National Socialist persecutions covered by the agreements.

Regarding the first reply, the Italian interpretation has been outlined by the former judge of the Italian Constitutional Court Rita Saulle36 and has been adopted by the Italian Corte di Cassazione and ordinary judges since 2008.37 It has to be added that the Constituent Assembly authorized the ratification of the Peace Treaty of 1947, adopting a resolution that declared the punitive reparations of the treaty as incompatible with the principles of international justice and thus demanded their revision. The Minister of Foreign Affairs, Carlo Sforza, declared that Germany was obliged to provide for reparations and to give adequate guarantees but the country should not be excluded from a future European Community.38 The original Italian intent was thus not at all to accept a full and binding waiver for any future reparation claim.

As for the second objection, Article 2 of the 1961 Agreement on the Settlement of Certain Property-Related, Economic and Financial Questions established a waiver for 'all outstanding claims'. The 1961 Agreement on the Compensation for Italian

32ICJ, Jurisdictional Immunities (n 1), para 102.

33Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3.

34Agreement between the Federal Republic of Germany and Italy on the Compensation for Italian Nationals Subjected to National-Socialist Measures of Persecution (Bonn, 2 June 1961), German and Italian version published in Bundesgesetzblatt II 5 July 1963 No 22, 791; Agreement between the Federal Republic of Germany and Italy on the Settlement of Certain Property-Related, Economic and Financial Questions (Bonn, 2 June 1961), German and Italian version published in Bundesgesetzblatt II 26 June 1963 No 19, 668.

35Agreement on German External Debts, 27 February 1953, UNTC No 4764 (London Debt Agreement).

36ANRP, 'Il libro bianco dell'A.N.R.P.', (2001), available at http://lnx.anrp.it/wp-content/uploads/ 2016/04/IL\_LIBRO\_BIANCO\_dellANRP.pdf, 1–220, 85 et seq.

37Corte di Cassazione, Judgment of 21 October 2008, No 1072/2008; Corte militare d'appello di Roma, Judgment of 25 January 2008; Tribunale di Torino, Judgments of 20 May 2010 and of 20 October 2009.

38Carlo Sforza, Assemblea Costituente (31 July 1947), available at http://www.camera.it/\_dati/ Costituente/Lavori/Assemblea/sed211/sed211.pdf, 6532–6566, at 6543.

Nationals Subjected to National-Socialist Measures of Persecution (Agreement on Compensation) shows that the waiver of the first 1961 Agreement could not cover claims for war crimes and crimes against humanity. Both Agreements established only partial waivers. The German version of 'schwebend' and the Italian 'pendenti' referred only to claims which already made an object of specific judicial or administrative proceedings, not to claims of immaterial damages for war crimes that had yet to be prosecuted. Both lump sum Agreements were transitory, not final.

Finally, Article 3 of the Agreement on Compensation established a waiver for all claims of victims of National Socialist persecution. This concept was defined in section 1 of the German Federal Compensation Act (Bundesentschädigungsgesetz) of 1953: '[S]omeone who on grounds of political opposition to National Socialism or on grounds of race, belief or ideology was persecuted by violent National Socialist measures and thereby suffered damage to life, body, health, freedom, property, assets or in professional or economic advancement (persecutee)'. 39 Should massacres and deportation for forced labour of Italians be qualified as Nazi persecution? They were violent measures conducted by the armed forces under a German National Socialist government that ordered collective punishments for Italian political opposition to the Axis Powers. Even an element of racism might have influenced Adolf Hitler to urge for a 'tabula rasa' and a 'brutal friendship'. 40 Nevertheless in the practice of compensation, the exploitation of forced labour seemed not to have been qualified per se as Nazi persecution.41 What is more, the Italian legislation reduced persecution to the repression of resistenza, adding the capture in action of rappresaglia and coercive conscription (Article 1, Decree of the President of the Republic No 2043/1963).

Germany after all has good arguments for considering the waivers of the lump sum Agreements as being all-inclusive, but the Italian interpretation of the Agreements as separate and partial waivers, excluding compensation for individual moral damages caused by war crimes, is also not straightforwardly unreasonable. German and Italian judges arrived at different conclusions, and the question was not decided by the ICJ. The way out of the deadlock could be an arbitration on the interpretation of the existing treaties as well as on the question of whether a relevant fundamental change of circumstances occurred.42

39German Federal Compensation Act (Bundesentschädigungsgesetz) of 18 September 1953, Bundesgesetzblatt I 21 September 1953 No 62, 1387.

40Frederick W Deakin, Die brutale Freundschaft: Hitler, Mussolini und der Untergang des italienischen Faschismus, (Cologne: Kiepenheuer & Witsch 1962), 607.

41See also Stefan Kadelbach, chapter 'State Immunity, Individual Compensation for Victims of Human Rights Crimes, and Future Prospects', and Andreas von Arnauld, chapter 'Deadlocked in Dualism', in this volume.

42Cf Francesco Francioni, chapter 'Overcoming the Judicial Conundrum', in this volume.

#### V. Fundamental Legal Changes Since 1961

There is no doubt that some relevant changes regarding war crimes and forced labour have taken place, changes which Karl Carstens and Pio Quaroni could not have foreseen when negotiating the agreements in 1961: first, adjudication of individual compensation to victims of war crimes has become an essential part of international criminal justice, and solidarity with victims has been strengthened; second, the prohibition of forced labour as a guarantee of the dignity-related human right has become ius cogens; and third, not only has Europe witnessed German reunification but the EU itself has enlarged both its borders and core founding values, including solidarity and peace, though without a final decision on the reparations envisioned by the London Debt Agreement.

'[D]eportation to slave labour or for any other purpose of civilian population of or in occupied territory' was already punished as a war crime in the Nuremberg trials.43 British military courts exercised jurisdiction over approximately 50 German war criminals in Italy,44 and Italian courts exercised jurisdiction on a few other cases.45

Since the German Constitution of 1949 (Article 16) ruled out extradition of nationals (with exceptions admitted only in 1993),46 the issue of time limits for prosecution of Nazi crimes had already been discussed in 1960.47 The prosecution of all war crimes was guaranteed by Article 112 of the Italian Constitution, but Quaroni, a former Italian Ambassador to Moscow, was reluctant to punish Italian war crimes.48 The negotiators might have been informed that the Head of the military public prosecution office in Rome decided, on 14 January 1960,49 to dismiss provisionally around 700 proceedings for German war crimes instead of starting

43See eg the cases Erhard Milch (Milch), Friedrich Flick et al (Flick), Carl Krauch et al (IG Farben), Alfried Krupp et al (Krupp). These are all cases from the Trials of War Criminals before the Nuremberg Military Tribunals. See Kevin John Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford: OUP 2011).

44See eg the cases of Albert Kesselring, Eberhard von Mackensen and Max Simon. Cf Filippo Focardi, 'La questione dei processi ai criminali di guerra tedeschi in Italia: fra punizione frenata, insabbiamento di Stato, giustizia tardiva (1943-2005)', Storicamente 2 (2006), 1–27, at 6.

45See the cases of Herbert Kappler, Walter Reder, Wilhelm Schmalz, Joseph Strauch and Eduard Florin. Cf Marco De Paolis, 'La punizione dei crimini di guerra in Italia', in Silvia Buzzelli/Marco De Paolis/Andrea Speranzoni (eds), La ricostruzione giudiziale dei crimini nazifascisti in Italia: Questioni preliminari (Turin: Giappichelli 2012), 63–140, at 90 et seq.

46Art 26 of the Italian Constitution admitted extradition only under conditions of reciprocity.

47Deutscher Bundestag, Zur Verjährung nationalsozialistischer Verbrechen—Dokumentation der parlamentarischen Bewältigung des Problems 1960-1979 (Bonn: Deutscher Bundestag Presse- und Informationsamt 1980), et seq.

48Lutz Klinkhammer, 'La punizione dei crimini di guerra tedeschi in Italia dopo il 1945', in Gian Enrico Rusconi/Hans Woller (eds), Italia e Germania 1945–2000: la costruzione dell'Europa (Bologna: Il Mulino 2005), 75–90, at 82 et seq.

49Final report of the Italian Parliamentary Commission on the Causes of the Concealment of Records regarding Nazifascist Crime, 8 February 2006, available at http://www.camera.it/\_dati/ leg14/lavori/documentiparlamentari/indiceetesti/023/018/INTERO.pdf.

trials in contumaciam. The negotiators could have relied on delays and inefficiency in prosecution, but they could have not expected the establishment, several decades later, of an International Criminal Court that also adjudicates on 'reparations to, or in respect of, victims, including restitution, compensation and rehabilitation' (Article 75 of the Rome Statute, 1998). The compensation of victims includes the 'moral' damages recognized in Germany since 1970, and the 'existential damages' recognized in Italy since 2003.50 Despite persisting WWII traumas, the two states, as welfare states, learned that concrete solidarity compensation schemes for victims of war crimes were needed.

The Italian Constitution (Articles 1, 4 and 35) considers free labour as a fundamental principle of the Republic, the German Constitution (Article 12 (2–3)) prohibits forced labour, and the European Convention on Human Rights (Article 4 (3)) grants freedom from slavery. The Prohibition of Slavery and Forced Labour Convention of 1957 was ratified by Germany in 1959 and by Italy in 1968,51 but the prohibition did not amount yet to ius cogens.52 The Geneva Convention of 1929 allowed forced labour of war prisoners but granted specific rights and humanitarian restrictions (Article 27–34) that need an extensive interpretation in the context of international human rights law. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 recognized the 'victims' right to remedies', including equal and effective access to justice and 'adequate, effective and prompt reparation for harm suffered'. 53 The German Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) granted individual compensation for forced labour on the basis of a general principle of solidarity that could be transformed into a collective duty under the common constitutional law of social market economies.

Finally, a fundamental change of circumstances can be traced in the reunification of Germany and the transformations of the EU. The former Democratic Republic did

50Bundesverfassungsgericht, Order of 14 February 1973, 1 BvR 112/65, BVerfGE 34, 269 (Soraya); Corte Costituzionale, Judgment of 30 June 2003, No 233/2003.

51Germany ratified the first ILO Convention on Forced Labour of 1930 in 1956, Italy in 1934. Art 2 exempted 'any work or service exacted in cases of emergency, that is to say, in the event of war', see ILO Forced Labour Convention, 28 June 1930, in force 1 May 1932, 39 UNTS 55.

52Cf ILO, 'Forced labour in Myanmar (Burma)', 2 July 1998, available at https://www.ilo.org/ public/english/standards/relm/gb/docs/gb273/myanmar.htm.

53UN General Assembly, Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (16 December 2005), A/Res/60/147, paras 11, 15. See also para 20: 'Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damages; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.'

not sign a lump sum agreement with Italy and reparation claims have never been settled. The EU treaties can be regarded as a surrogate for a peace treaty between Germany and Italy, however with notorious deficits of democratic accountability. The EU's fundamental values could suffer if both social principles (Article 23(1) of the German Constitution) and the ideal of 'justice among the Nations' (Article 11 of the Italian Constitution) are not guaranteed for the very same generations that inspired these human rights-centred foundational texts.

All these aspects are relevant to the question: is a (re)negotiation possible and desirable? However, it remains profoundly questionable whether these elements provide sufficient support for a legal claim under Article 62 of the Vienna Convention. Being such an interpretation controversial, one could argue though that engaging in good faith negotiations for a new bilateral or multilateral agreement (providing as well for an authentic interpretation and integration of the 1961 Bonn Agreements), would not be unreasonable.

#### VI. A Belated Solidarity

Further objections concern time limitations for individual rights to compensation.54 Neither Italy nor Germany signed the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes of 1974. Italian judges could still align with the German position and consider that, except for genocide and murder, no international customary norm prohibits prescription of compensation claims for war crimes (Verjährung).55 The dispute regarding whether these or other limitations apply to individual compensation claims could be settled by way of arbitration or by a new decision of the ICJ. But from the point of view of the last survivors, there is no more time for further procedural delay. A 'belated solidarity' risks being rejected as 'too little too late' by those whose dignity has been violated.

At best, time might not be in Germany or Italy's favour. Any intent to gain time through further procedures would sound as much as a cynical solution, as an unhappy and anachronistic evocation of the past. Again, prudence invites us not to ignore morality in international relations, especially within the borders of supranational organizations based on common values.

The litigation on prescriptive norms, therefore, should not prevent reaching an agreement on payments due for reasons of equity. Equitable compensation could raise problems when it comes to finding political consensus, even though there would not be any question of constitutional legitimacy, since full reparation is not

54Cf Giovanni Boggero/Karin Oellers-Frahm, chapter 'Between Cynicism and Idealism', in this volume.

55For the Italian case this was the position of Tribunale di Torino, Judgment of 20 October 2009, No 7137/2009.

required by the Italian Constitution. To reply to the editors' questions, the German, as well as the Italian state, could honour the rights to compensation—as well as duties to social solidarity for the benefit of 'others' with the resources of a state's citizens and taxpayers—as long as these 'others' are victims of war crimes. Even if similar crimes and torts would not have been concretely assessed through judicial decisions, the rule of law of a welfare state always allows for specific forms of solidarity. The voting rights of citizens and property rights of taxpayers cannot be violated by otherwise lawful administrative or judicial decisions that fulfil a duty to international human solidarity.

It is a political question whether a similar gesture of a 'belated solidarity' would be a good investment for Germany's reputation in Europe and generally on the international plane or whether it would favour a more nationalist and populist opposition. On the one hand, there is the hope that a similar gesture could promote reconciliation, legal peace and social cohesion between Germany and Italy, while helping families to close the 'memory books'. On the other hand, there is the fear that it could become a model for other interested countries, creating a potentially dangerous and costly precedent.

The possibility of generating a consensus will depend on the specific models of organization, procedure and financing of this form of 'belated solidarity'. From the point of view of the associations of victims, Germany's pardon request for Marzabotto and the work towards a shared collective memory already represented a significant degree of compensation. The public discourses and the funding of the work of historians56 and lawyers could still be followed by the recognition of an at least symbolic economic benefits for the victims of massacres and/or forced labour. The rules for such compensation need to be construed in a way consistent with the principles of solidarity, equality and democratic responsibility; the existing national rules for solidarity with victims of violent crimes and forced labour could offer a general framework for this compensation scheme. The territorial and personal scope of this solidarity, the amount of compensation and the administrative procedure to be followed, along with the necessary funding have to be defined more in details, but some ideas could help clarify these highly complex practical problems.

## 1. Territorial and Personal Scope of Solidarity

Solidarity can be differentiated on the basis of criteria of proximity. One could argue that it should be limited to the 'former allied' countries, but over time a new proximity and ties of solidarity within the EU and within the Council of Europe (CoE) have been created. European solidarity with victims of war crimes has been strengthened through common ceremonies in and alongside war cemeteries and

56Cf on the perspective of further 'prosopographic and social-statistical studies' in 'Bericht der Deutsch-Italienischen Historikerkommission' 2012 (n 9), 169.

monuments. Negotiations could start with the purpose of reaching an agreement for all victims of WWII war crimes who were citizens of the signatory states and received no compensation. War crimes, deportation, and forced labour occurred not only in Italy but elsewhere too. The United Nations War Crimes Commission (UNWCC) investigations went beyond German war crimes; citizens from Austria, Hungary, Romania, Bulgaria, and Albania, as well as 1,697 Italian citizens were among the 19,000 suspected war criminals listed.57 Massacres among civilians, for example, took place in Greece, the former Yugoslavia, and France, and not uncommonly prisoners of war from other nations, especially Poland and Russia, were the victims. These crimes as well as those committed by Allied Forces justify neither negationism nor oblivion. A bilateral or multilateral approach through a convention organized by the former Axis Powers, and perhaps open to all other states from the EU or the CoE, could be a good way for the 'bad boys' of the past to emerge as the heroes of solidarity and peace in Europe.

The right to compensation of immaterial damages deriving from war crimes could be limited to an individual una tantum to be divided among all surviving victims that have never received any compensation and who would be willing to sign an individual waiver.

Restrictions on the personal scope of the scheme in favour of living survivors needs further clarification. At current, the loss of life in wartime cannot be individually compensated. As Jochen Frowein correctly argued in a hearing of the Bundestag in 2015, recognising the suffering of surviving victims does not require an extension of the benefits to the surviving relatives of deceased victims.58 A 'belated solidarity' would be de facto a restricted one, but could be justified on a 'better late than never' basis. Nevertheless, in order to prevent any cynical interest in lengthy negotiations so as to possibly mitigate the financial impact of the new compensation/reparation regime, it would not be unreasonable to accept an extension so as to include the families of victims who had survived until the date of the ICJ Judgment. On the other hand, surviving victims of war crimes committed by Italian forces could not be a priori excluded.

## 2. Calculation of the Reparation

The amount could be calculated on the basis of the average compensation recognized by national administrations or courts or by the International Criminal Court, adapted

57Cf the proceedings of the United Nations War Crimes Commission (UNWCC), 1943–1949.

58Jochen A Frowein, 'Stellungnahme zu den Anträgen auf symbolische Entschädigung noch lebender sowjetischer Kriegsgefangener' (13 May 2015), available at www.bundestag.de/blob/ 374858/d050da4429429f261745a4e37c1970ca/prof%2D%2Ddr%2D%2Djochen-a%2D% 2Dfrowein-data.pdf.

to the average income of the country where the victim is living and according to a projection of the number of beneficiaries.

The case of the Italian victims of forced labour is a special one, in reason of their exclusion from the schemes of the German Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft).59 The proposals regarding Russian military internees and war prisoners presented in 2015 by the two then opposition parties in the German Bundestag60 proposed €2,500 (Grüne) or €7,670 (Die Linke) for each victim. The smaller sum is based on the 'recognition payment for former German forced labour workers' granted by a directive of the German Ministry of the Interior of 7 July 2016. The larger amount is equal to the payments for forced labour granted by the Foundation 'Remembrance, Responsibility and Future'. Even without any specific law or constitutional obligation, the German state, through this financial instrument, paid tribute to the hard 'destiny' of German citizens and people that carried out forced labour for a foreign power. This is an important but ambiguous precedent. It could be a model of humble and noble human solidarity, but it could also be based on a limited ideal of solidarity, since restricted exclusively to German nationals.

Another alternative or cumulative form of solidarity could be the establishment of a solidarity fund for charitable subsidies to all those victims who did not get a sufficient pension treatment or who are still suffering diseases caused by war crimes and torts in question. Even aids for concrete reconciliation initiatives in Germany and Italy (for example travel reimbursements) could be offered by this 'belated solidarity' fund.

All these benefits would need to be investigated, but no judicial decision would be required for recognising the status of the victims of crimes and forced labour. The benefits could be granted through a specific administrative procedure by national administrations under the directives and control of a common international board.61

## 3. Financing

The main question is how to finance the different forms of solidarity and financial recognition. All possible sources of solidarity funding should be considered, including private donations and contributions from all those that benefitted from forced labour, as well as military related industries and railway enterprises. Similar donations could be eligible for tax benefits. State contributions to this fund could be

59It is worth noting that the German scheme influenced also the Austrian Fund 'Reconciliation, Peace and Cooperation' (Reconciliation Fund).

60See Deutscher Bundestag, 'Plädoyer für Entschädigungen' (19 May 2015), available at www. bundestag.de/presse/hib/2015\_05/-/375140.

61Cf Filippo Fontanelli, chapter 'Sketches for a Reparation Scheme', in this volume.

calculated on an equal basis for each state on a personal per capita solidarity basis (specifying an amount for each citizen from the respective signatory states).

Italian participation would strengthen the principle of common European solidarity. Of course, Germany could ask the ICJ for an 'equitable satisfaction' to be granted in an analogous application of Article 30 of the European Convention on Dispute Settlement, and this satisfaction if granted might be allocated for funding. Alternatively, Italy could participate spontaneously, in part due to the force of its fundamental constitutional principle of solidarity which authorizes the Republic to concur even in international solidarity funds. The exclusion from the existing compensation schemes of victims of massacres and forced labour was a common decision of both the German and the Italian governments and common funding would therefore be the best way to render a 'belated solidarity' viable.62

Another exclusively political question is whether a similar project of 'belated solidarity' would be rejected by a majority of taxpayers who might be no longer willing to pay for past wrongdoings or to subscribe to forms of 'chequebook-baseddiplomacy'. The 'bottomless-pit' argument is always an equity blocker, but a now reunified Germany should not forget that the Two Plus Four Treaty63 was not the final peace treaty envisaged by the London Debt Agreement and that a consolidation of the lump sum agreements could be the best way to provide an acceptable monetary limit.

### VII. The Proper Use of Supreme Principles as Part of the 'Constitutional Identity'

The binational discussion on an equitable solution would likely not end the debate over the question of remedies against immunity. We are moving from a traditional dualist approach, as the likes of Dionisio Anzilotti and Heinrich Triepel, towards neither an international nor a national monism but towards a more recent pluralist approach.64 A way out of the deadlock might lay in searching for procedures that could help finding ad hoc balances, while avoiding clashes between the two parties involved. This should be done through concrete forms of communication between the diverging legal orders and cultures rather than through an a priori hierarchy between supreme constitutional principles of rights protection and sovereign immunity.

62See also Francesco Francioni, chapter 'Overcoming the Judicial Conundrum', in this volume.

63Treaty on the Final Settlement with Respect to Germany, 12 September 1990, 1696 UNTS 115 (Two-Plus-Four Treaty).

64As favoured by Anne Peters, 'Let Not Triepel Triumph: How to Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order', EJIL: Talk! (26 December 2014), available at www.ejiltalk.org/let-not-triepel-triumph-how-to-make-the-best-out-of-sentenzano-238-of-the-italian-constitutional-court-for-a-global-legal-order-part-i/.

The ItCC's Sentenza 238/2014 did not use the concept of constitutional identity quoted by the Tribunal of Florence and which is not yet well established in the ItCC's jurisprudence.65 The Court preferred to invoke 'the fundamental principles of the constitutional order and inalienable human rights', which is a mix of principles that can serve for a coordination of the values of constitutionalism and international rule of law.

In the interlocutory Taricco case, a new complex case of prima facie conflict between the rule of law at the national and international level, the ItCC used the concept of constitutional identity only in the context of EU law:66 'This Court would like to stress that, whilst the aim of the interpretation set out above is to preserve the constitutional identity of the Republic of Italy, it does not however compromise the requirements of uniform application of EU law and is thus a solution that complies with the principle of loyal cooperation and proportionality.' 67 The use of the concept of constitutional identity was based on a specific national tradition and constitutional culture, aimed at giving a higher protection to the citizens' legal certainty than to the state (or EU) interests.

A similar solution, encouraging a harmonized interpretation of the different legal systems, was unworkable for the ICJ Judgment because there were, and still there are, no specific forms of dialogue between the ICJ and national constitutional courts.68 The ItCC attempted to qualify the right of access to justice in cases of serious violations of fundamental rights also as an international rule of law principle to be taken seriously by all international and municipal judges. This interpretation is based on a supreme principle of the Italian Constitution (Article 2) which should be respected at least as a domestic exception to the rule of state immunity. Now, one could read Sentenza 238/2014 as a plea for tolerance and respect for a supreme constitutional principle. The Judgment outlines a distinctive Italian constitutional

65Corte Costituzionale, Judgment of 19 March 2001, No 73/2001: '[T]his Court—as the referring judge recalls—reaffirmed the principle that the tendency of the Italian legal order to be open to generally recognized norms of international law and international treaties is limited by the necessity to preserve its identity; thus, first of all, by the values enshrined in the Constitution'. In Corte Costituzionale, Judgment of 7 October 2009, No 262/2009, the concept is still synonymous with the whole constitutional design and system of equality and immunities. Cf Michel Rosenfeld, 'Constitutional Identity', in Michel Rosenfeld/András Sajó (eds), The Oxford Handbook of Constitutional Comparative Law (Oxford: OUP 2012).

66Corte Costituzionale, Order of 23 November 2016, No 24/2017: 'Naturally, the Court of Justice is not exempt from the task of defining the scope of EU law and cannot be further encumbered by the requirement of assessing in detail whether it is compatible with the constitutional identity of each Member State. It is therefore reasonable to expect that, in cases in which such an assessment is not immediately apparent, the European court will establish the meaning of EU law, whilst leaving to the national authorities the ultimate assessment concerning compliance with the supreme principles of the national order.'

67Ibid: 'The Italian Constitution construes the principle of legality in criminal matters more broadly than European law as it does not limit itself to describing the conduct constituting the offence and the penalty, but rather covers all substantive aspects of liability to punishment.'

68See also Alessandro Bufalini, chapter 'Waiting for Negotiations', in this volume.

identity in the international legal order, representing as well a leading case for a moderate use of the concept of constitutional identity itself.69

On the other side and in more general terms, the invocation of a constitutional identity could also be understood as a 'trump card' that weakens international customary law and the authority of international judges, and further backs a new nationalist monism. From this more sceptical point of view, the constitutional identity exception could promote a national-constitutional-rights fundamentalism and enhance the power of domestic judges. While the first interpretation, influenced by an idealism based on tolerance, could strengthen the international rule of law; the second interpretation, inspired by legal realism, could instead promote its decline.70

The first, 'tolerant' reading could be more consistent with the Italian Constitution, but constitutional justices should acknowledge that constitutional identity includes a fundamental principle of 'internationality'. Among 'fundamental principles', the first part of the Italian Constitution recognizes the primacy of general rules of international customary law (Article 10(1)), the right of asylum of any 'foreigner who (...) is denied the actual exercise of the democratic freedoms' (Article 10(3)), the 'repudiation' of war as an instrument of aggression against the freedoms of other peoples, as well as a favour for limitations of sovereignty that 'may be necessary to a world order ensuring peace and justice among the Nations' (Article 11). These principles already moderate dualist readings and offer together with the other commitments—the protection of democracy (Article 1), human rights (Article 2), equality (Article 3), labour (Article 4), local autonomies (Article 5), linguistic minorities (Article 6), religious peace (Article 7 and 8), cultural development (Article 9)—substantial elements to an international constitutionalism, a design for a future constitution in a world governed by common principles.71 Taking these fundamental constitutional principles and human rights seriously in a pluralist perspective, the ItCC would act not only as an organ of the national constitutional state but of the international community.

The question of constitutional identity is not just about who and what we are; it deals first of all with how we interact with others. Therefore, the new tool of constitutional identity needs to be embedded in good procedures. Domestic ordinary judges, as well as constitutional and EU judges are still learning how to conduct a dialogue around identity questions, but even without preliminary question mechanisms some instruments of indirect dialogue with the ICJ could be developed.

The rules of the ICJ allow, if necessary, to arrange for an enquiry or an expert opinion (Article 67 ICJ Statute) on questions related to the respect of national 'constitutional identities' relevant for controversies on international customary

69Cf Antonio Ruggeri, 'Conflitti tra norme internazionali consuetudinarie e Costituzione, atto secondo: quali i possibili "seguiti" della 238 del 2014?', Consulta Online, (5 March 2015), available at http://www.giurcost.org/studi/ruggeri45.pdf, 34–59.

70Heike Krieger/Georg Nolte, 'The International Rule of Law—Rise or Decline?—Points of Departure', KFG Working Paper Series 1 (2016), 1–23.

71Jan Klabbers/Anne Peters/Geir Ulfstein (eds), The Constitutionalization of International Law, expanded edition 2011 (Oxford: OUP 2009).

law. The ICJ 'may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative' (Article 34 ICJ Statute). Expert opinion as well as information procedures could involve the Venice Commission and the World Conference on Constitutional Justice. The same instruments could be used by national constitutional judges when facing potential conflicts between constitutional identity and international customary law.

In the Italian system of constitutional justice, there is no specific judicial procedure for scrutinizing whether a national legal Act is compatible with international law (such as the 'Normenverifikation' under Article 100(2) of the German Constitution). The ItCC could be asked whether an Italian legislative Act is compatible with a norm of international customary law and could then decide incidenter tantum that the customary norm is compatible with the supreme principles of constitutional identity. Furthermore, Sentenza 238/2014 created a new type of proceeding on the basis of an analogy: the other judges can refer incidenter tantum to the ItCC the question on whether or not a norm of international customary law they have to apply is compatible with the Italian constitutional identity.72

In this regard, the constitutional identity review could require specific rules made by the legislator through constitutional amendments (Article 137 of the Italian Constitution). The constitutional lawmakers could decide whether the right use of constitutional identity to international customary law implies a power to deliberately 'nullify' international judgments and the rules that govern their execution. If the constitutional judges have the power to decide that an international customary norm contrary to constitutional identity is null and void, also the European constitutional review over legislative Acts risks being transformed into the power to annul international judgments. The best way to avoid an ultra vires exception against Sentenza 238/2014 could be a codification of this new self-made proceeding of constitutional justice.

Finally, the right use of constitutional identity should always require the highest possible standard of argumentation and hermeneutics. When constitutional rights and their limitations are invoked in the name of constitutional identity, ponderation even between the supreme principles has to be enhanced. The right to remedies can prevail at the national level and the privileges of state immunities at the international level, but under conditions of pluralism, ponderation in the relationship between the rule and exception is not established once and for all.

A world where the harshest forms of injustice cannot be addressed and access to justice is recognized to Arnold the Miller,73 but not to a forced labourer or to a victim of war crimes would disregard its own minima moralia. Yet, a world where access to

72Following Corte Costituzionale, Order of 11 February 2015, No 30/2015, the Court had decided the 'inexistence (ab origine)' of the state immunity norm insofar as it was conflicting with a fundamental constitutional principle.

73The anecdote of the miller of Potsdam (the Miller-Arnold-Case) is famously described in Thomas Carlyle, 'History of Friedrich II of Prussia', Vol 21, The Works of Thomas Carlyle, Vol 3, (Cambridge: CUP 2010) 243 et seq.

justice is used for the self-empowerment of judges to compel governments into negotiations would lead to a reality in which fiat iustitia, et pereat mundus.

If one looks at the general usage in biology, 'immunity' means the capability of multicellular organisms to resist the entrance of harmful microorganisms.74 Applied in different biological, technical and legal contexts, immunity depicts the body of a person or an organization with a life and a constitutional equilibrium. Subjective rights defended in courts can be aggressive and harmful to the whole, but they can include claims for immunities, for example the claim of soldiers to be protected by an adequate umbrella of state immunity. In its Roman law origin, immunity did not refer to the state but to the freedom of a citizen from public duties and, especially, taxes. Immunity was the opposite of community—both deriving from munus—and the idea is still that any excessive immunization could transform a protection of life into its negation.75

The balancing between remedies and immunity needs to be handled by governments alongside judges, taking into account the specific European context. More than sixty years after the signature of the first treaties, the permanent dialogue between Germany and Italy has a difficult future.76

The traumas of WWII persist. The facts at the origin of the remedies v immunity controversy constitute a living history that is still awaiting a commonly agreed conclusion.

#### References

italienischen Faschismus (Cologne: Kiepenheuer & Witsch 1962)

De Paolis, Marco, 'La punizione dei crimini di guerra in Italia', in Silvia Buzzelli/Marco De Paolis/ Andrea Speranzoni (eds), La ricostruzione giudiziale dei crimini nazifascisti in Italia: Questioni preliminari (Turin: Giappichelli 2012), 63–140

Esposito, Roberto, Immunitas: The Protection and Negation of Life (London: Polity Press 2011) Focardi, Filippo, 'La questione dei processi ai criminali di guerra tedeschi in Italia: fra punizione

frenata, insabbiamento di Stato, giustizia tardiva (1943- 2005)', Storicamente 2 (2006), 1–27

74See, eg, Reece Davis, Cellular and Molecular Immunology (Waltham Abbey: ED-Tech Press 2019), at 36.

75Roberto Esposito, Immunitas: The Protection and Negation of Life (London: Polity Press 2011).

76Both states should not be blind to the past, including the darker legacy of the 'establishment of a new order in Europe' envisaged in the tripartite pact of 27 September 1940. From a legal point of view, Germany invaded Italy—in a clear violation of the Briand-Kellogg Pact of 1928. The alleged violation of the obligation of military defence in the tripartite pact could not justify German aggression, answered as it was by the Italian declaration of war of 17 October 1943. This fatal mistake could be recognized in a formal public statement with which Germany assumes its responsibility.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## State Immunity, Individual Compensation for Victims of Human Rights Crimes, and Future Prospects

#### Stefan Kadelbach

Abstract This chapter first recapitulates the state of affairs as to the principle of state immunity and why exceptions from jurisdictional immunity for gross violations of human rights and humanitarian law are not recognized. It explores customary law and the global compensation treaty between Germany and Italy. Both indicate that Italy would be obligated to indemnify Germany from individual claims raised before Italian courts.

In a second step, the development towards individual rights in public international law will be taken up. It appears that human beings are increasingly recognized as holders of individual claims but, apart from human rights treaty systems, lack the capacity under international law to invoke their rights before courts. Instead, they depend on their home states, which have standing but are not entitled to waive the individual rights of their citizens.

In order to reconcile the seemingly antagonistic regimes of state immunity and claim settlement, prospects for a friendly solution of the present dilemma will be assessed. Against the background of cases pending before Italian courts, it will be examined whether the distinction between jurisdictional immunity and immunity from execution opens up a way out of the impasse, which the two states and private capital could pursue, and whether this solution would create a precedent for other similar constellations.

Lastly, some concluding remarks will address lessons to be learnt for future conflicts. They will deal with elements of a general regime of compensation, drawing from the experience of both past reparation schemes and the experience of reconciliation in post-totalitarian societies. Such elements could be a duty to seek bona fide settlements, possible consequences of violations for domestic court proceedings, methods of assessing damages inspired by mass claim processing, the categorization of claims according to the gravity of violations, rules on evaluating evidence, procedures to give victims a say, and appropriate forms of monetary and non-pecuniary compensation including the necessary institutional framework.

https://doi.org/10.1007/978-3-662-62304-6\_7

S. Kadelbach (\*)

Goethe University Frankfurt, Institute for Public Law, Frankfurt am Main, Germany e-mail<EMAIL_ADDRESS>
© The Author(s) 2021

V. Volpe et al. (eds.), Remedies against Immunity?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 297,

#### I. Introduction

In Sentenza 238/2014, the Italian Constitutional Court (ItCC) ruled that it was unconstitutional for Italian courts to apply the customary principle of state immunity to war crimes and crimes against humanity.1 In the same vein, the ItCC found that the domestic law implementing the UN Charter2 did not form part of the Italian legal system, as far as it obliged Italian courts to abide by a decision of the International Court of Justice (ICJ) pursuant to Article 94(1) of the UN Charter, if such a judgment upholds state immunity for crimes under international law. The ItCC also quashed a statute that ordered Italian courts to implement the Jurisdictional Immunities Judgment.3 According to the ItCC, the fundamental rights of the Italian Constitution, and particularly the right of access to a court, were superior to obligations under international law. The Court thus transferred the controlimiti doctrine, which had been developed to allow for exceptions to the priority of EU law over domestic law, so as to allow for an exception to the obligation to abide by judgments of the World Court.4

Irrespective of how convincing this decision is, it points towards a gap between individual rights and the capacity to invoke these rights before domestic or international courts. This gap (and the concomitant inconsistencies) is cause for concern. While international law since World War II (WWII) has witnessed an increase in norms that aim at the protection of the individual, it remains the case that states alone have standing before courts to bring suits for violations of these rights. State immunity reflects this concept. Apart from international human rights protection schemes, where individuals may raise complaints if the respondent state has recognized pertinent jurisdiction, traditional law by virtue of state immunity places the respondent state on an equal level with the state that espouses the claim and bars the holders of these rights from proceedings on their own behalf. Thus, even though Italy and its courts have a point in stressing the human rights nature of the claims concerned, they engage the international responsibility of the Italian state for violation of state immunity by enforcing such claims.

The present chapter elaborates further on this contradictory legal situation and tries to develop a notion of how contemporary international law should respond. In a first step, the complex interplay between traditional patterns of reparation, state immunity, and human rights in the Italian compensation cases is analysed (section II). Subsequently, this chapter identifies some tendencies in international law that appear to depart from this classical model (section III). These tendencies point at possible ways to better integrate victims of war crimes and crimes against humanity into compensation schemes (section IV)—and show that a conciliatory solution to

1 Corte Costituzionale, Judgment of 22 October 2014, No 238/2014.

2 Article 1 of the Italian Law 17 August 1957, No 848.

3 ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, para 136.

4 See explicit reference in ItCC, Judgment 238/2014 (n 1), para 3.2.

the pending cases would comply better with the development through which international law has travelled in the past decades (section V).

#### II. Compensation, Immunity and Human Rights

In its Judgment of 3 February 2012, the ICJ once again upheld state immunity from national jurisdiction, which applies as long as no specific treaty obligates a state to exert jurisdiction.5 More specifically, it found that Italian courts disregarded this principle by exercising jurisdiction over claims raised against the Federal Republic of Germany, by declaring Greek judgments against the German state enforceable, and by enforcing such judgments, which an Italian domestic court did by registering a legal charge on Villa Vigoni for the purpose of securing an acknowledged claim. After an analysis of state practice, the ICJ rejected the notion of exceptions to immunity from jurisdiction or from enforcement, including for war crimes and crimes against humanity.6 Accordingly, Italy was held responsible vis-à-vis Germany,7 even though the Court stressed that it did not rule on any individual claim for compensation under international law.8

Before reconstructing the rationale of this judgment (section II.2.), it appears useful to take a look at the legal framework for the compensation of Italian victims of persecution and crimes committed during WWII (section II.1.).

## 1. Compensation Agreements and German Compensation Law After World War II

According to Article 77(4) of the Italian Peace Treaty, Italy waived 'on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939'. 9 This waiver referred to 'all claims for loss or damage arising during the war'.

5 Cf ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3, para 51; ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment of 4 June 2008, ICJ Reports 2008, 177, para 170; ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, ICJ Reports 2012, 422: the obligation under Art 7 of the UN Convention against Torture implied that immunity, even though the issue was raised in the course of proceedings before domestic courts in Senegal (ibid, para 22), could not be invoked by the accused.

6 ICJ, Jurisdictional Immunities (n 3), paras 80-97.

7 Ibid, para 136.

8 Ibid, para 108.

9 Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3.

This provision, theoretically, did not bar Italian war victims from presenting a claim under the German compensation law (Bundesentschädigungsgesetz). According to the statute's pertinent version of 1956, however, reparations depended on the qualification of the claimant as a victim of national-socialist persecution as well as a domicile or permanent residence in Germany until 31 December 1952.10 Claims had to be registered by 1 October 1957.

In 1961, Germany and Italy concluded two bilateral compensation agreements. The Agreement on the Compensation for Italian Nationals Subjected to National-Socialist Measures of Persecution, according to the official reasoning, was intended to include those Italian victims of persecution who did not qualify under the compensation law of 1956.11 Germany agreed to pay DM (Deutsche Mark) 40 million 'for the benefit of Italian nationals who, on grounds of their race, faith or ideology were subjected to (...) measures of persecution and who, as a result of those persecution measures, suffered loss of liberty or damage to their health, and for the benefit of the dependents of those who died in consequence of such measures'. This agreement was, according to its Article 3, meant to 'constitute final settlement' between the two states. Germany has held ever since that victims of war crimes, including Italian Military Internees (IMIs) or people deported and subjected to forced labour, were beyond the ambit of the term 'victim of Nazi persecution'.

For all other types of claims the second agreement of 1961 is of interest, which concerns the 'settlement of certain property-related, economic and financial questions'. 12 Germany paid a further lump sum of DM 40 million for 'outstanding questions of an economic nature'. Italy, in turn, agreed to indemnify the Federal Republic of Germany 'for any possible judicial proceedings or other legal action by Italian natural or legal persons' in relation to claims 'based on rights and circumstances which arose' during WWII.13 Article 24 of this agreement states that Germany considered the settlement agreed therein as final. The accompanying exchange of notes between both sides make no mention of Article 24. As a consequence, Germany considers it to be the responsibility of the Italian state to compensate claims within the scope of this agreement, including victims of war crimes and persons deported and subjected to forced labour.14

10Third German Law Amending the Additional Federal Compensation Act of 29 June 1956, Bundesgesetzblatt I 29 June 1956, No 31, 559; the statute had retroactive effect as of 1 January 1953.

11Agreement between the Federal Republic of Germany and Italy on the Compensation for Italian Nationals Subject to National-Socialist Measures of Persecution (Bonn, 2 June 1961), German and Italian version published in Bundesgesetzblatt II 5 July 1963, No 22, 791; official reasoning in Bundestagsdrucksache IV/438, 9.

12Agreement between the Federal Republic of Germany and Italy on the Settlement of Certain Property-Related, Economic and Financial Questions (Bonn, 2 June 1961), German and Italian version published in Bundesgesetzblatt II 26 June 1963, No 19, 668.

13Original in German and Italian; English translation taken from ICJ, Jurisdictional Immunities (n 3), para 24.

14Cf ICJ, Jurisdictional Immunities (n 3), para 102.

This, however, did not happen. With the German Law of 2 August 2000 establishing the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft), a further effort was made15 with the intention to cover damages for people who had not been compensated under the laws enacted or agreements concluded previously. However, it did not encompass prisoners of war (POW) for whom the allied forces had already set up a compensation scheme shortly after the war. The fact that the German Reich denied POW status to IMIs did not prevent German authorities from placing forced workers under that category. The ICJ noted that it was 'a matter of surprise—and regret—that Germany decided to deny compensation' for that reason.16

## 2. Immunity As a Part of the System

The ICJ cited ample state practice, particularly judgments of domestic courts, to support its conclusion that there is no exception from immunity even for particularly grave violations of international law.17 This is in line with the jurisprudence of the European Court of Human Rights (ECtHR), which has repeatedly held that no violation of the European Convention on Human Rights (ECHR) would ensue were courts to grant immunity from jurisdiction, including for claims against a state whose agents were accused to have committed human rights crimes such as torture and crimes against humanity.18 The rationale behind this reasoning has two aspects: a reciprocity and a policy argument.

The reciprocity argument refers to the traditional concept of state immunity. It derives from the principle of the sovereign equality of states, which implies that no state's institutions may sit as judges over the conduct of other states.19 The historical motive to exempt the monarch from the jurisdiction of courts has ceded over time to the rationale of guaranteeing the exclusive competence of the respondent state to determine its policies.20 Once an exception to the rule is made, the concern is that this would open the door for retaliation of a similar kind before other states' courts and for a politicization in the administration of justice.21 This concept seems all the

15German Law Instituting the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) of 2 August 2000, Bundesgesetzblatt I 11 August 2000 No 38, 1263. 16ICJ, Jurisdictional Immunities (n 3), para 99.

17Ibid, paras 81-97.

18ECtHR, Al-Adsani v The United Kingdom, Judgment of 21 November 2001, Application No 35763/97; ECtHR, McElhinney v Ireland, Grand Chamber Judgment of 21 November 2001, Application No 31253/96; ECtHR, Kalogeropoulou and Others v Greece and Germany, Decision of 12 December 2002, Application No 59021/00.

19ICJ, Jurisdictional Immunities (n 3), para 57.

20Hazel Fox/Philippa Webb, The Law of State Immunity (Oxford: OUP 3rd ed 2013), 26-28.

21Burkhard Hess, 'Kriegsentschädigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht', Berichte der Deutschen Gesellschaft für Völkerrecht 40 (2003), 107–212, at 189.

more difficult to accept when the conduct in question amounts more clearly to serious and large-scale human rights crimes.22

The policy argument addresses the possible consequences of exceptions to immunity. With respect to reparation after war and other types of conflict, opening the path to domestic courts has a potentially detrimental effect on the incentive to arrive at an agreement through compromise, because victims would prefer to go to court and seek full compensation.23 Court judgments would discourage negotiated compensation schemes, which are typically accompanied by lump sum and final settlement clauses. If obtaining such judgments is a realistic option, then state parties would be even more hesitant than they currently are to engage in such treaties. Moreover, forum-shopping might be an unwanted consequence.

## 3. A Human Rights Perspective on Sentenza 238/2014

It should not go uncommented that the solution defended by the ItCC in Sentenza 238/2014 also raises serious concerns of a more general nature. To compromise the normativity of international law and even the UN Charter at the discretion of domestic courts comes as an invitation to actors in systems that do not primarily honour the protection of individual rights. In adapting the approach the European Court of Justice (ECJ) developed in the Kadi case,24 in which the ECJ subjected sanctions by the UN Security Council to its judicial review,25 the ItCC on the face of it made an effort to align with European fundamental rights standards. However, a similar approach was also followed with regard to the ECtHR,26 so that the ItCC has aligned with other constitutional courts that formulate caveats to the implementation of ECtHR judgments. In an environment less prone to fundamental rights, the Russian Constitutional Court cited such jurisprudence with approval when it held that compliance with ECtHR judgments could be made conditional on a decree of

22Jürgen Bröhmer, State Immunity and the Violation of Human Rights (The Hague: Nijhoff 1997), 189-215; Fox/Webb, State Immunity 2013 (n 20), 44-48.

23The opinion that compensation treaties implicitly exclude individual claims before national courts per se, as held by German authorities for some time, however, was rejected by the German Federal Constitutional Court in the forced workers claims case, Order of 13 May 1996, 2 BvL 33/93, BVerfGE 94, 315, at 328-334.

24Cited in ItCC, Judgment 238/2014 (n 1), para 3.4.

25Cf CJEU, Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Judgment of 3 September 2008, Joined Cases Nos C-402/05 P and C-415/05 P, paras 316; 320–326.

26Corte Costituzionale, Judgments of 22 October 2007, Nos 348 and 349/2007, para 6.1; for a similar approach to the ECtHR, see the judgment of the German Federal Constitutional Court in the Görgülü case: Bundesverfassungsgericht, Judgment of 14 October 2004, 2 BvR 1481/04, BVerfGE 111, 307, at 329.

the President of the Russian Federation.27 Thus, probably against its own intentions, the ItCC has contributed to a dwindling fidelity to international law, of which human rights form an essential part.

In sum, also from a human rights perspective, albeit not in an obvious way, Sentenza 238/2014 entails ambivalent consequences. To conclude from this observation that fundamental rights are best served if the lines drawn by traditional international law were further followed, however, would drive the point too far. In a way, Sentenza 238/2014 goes in the direction of another trend in international law, namely the progressive development towards individualization.28 In order to better understand the dilemma of the ItCC and to put forward an informed suggestion for possible future arrangements, it should be asked what that trend means for the compensation of victims of war crimes and crimes against humanity.

#### III. The Individualization of Claims Under International Law

The Jurisdictional Immunities Judgment reaffirms a distinction between substantive and procedural law,29 which is also visible in the emancipation of individual rights from mediatisation by state interests in post-war compensation systems. In the law governing injuries against aliens, the violation of the rights of an individual foreign national was considered 'in reality' an infringement on the said individual's home state to assert its own rights.30 This so-called Vattelian fiction,31 however, has been modified. In those crucial areas of international law in which the individual is at the centre—that is in human rights law, international criminal law and in international humanitarian law—compensatory schemes for violations of the individual's rights form part of the regimes.

27Russian Constitutional Court, Judgment of 14 July 2015, No 21-П/2015 on request of State Duma deputies, translation by Maria Smirnova, available at http://transnational-constitution.blogspot. com/2015/08/russian-constitutional-court-decision.html. See also Heike Krieger, chapter 'Sentenza 238/2014: A Good Case for Law-Reform?', in this volume.

28Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge: CUP 2016); see also Anne Peters, 'Immune against Constitutionalization?', in Anne Peters/Evelyne Lagrange/Stefan Oeter/Christian Tomuschat (eds), Immunities in the Age of Global Constitutionalism (Leiden: Brill 2015), 1-19.

29For a critique, see, among others, Jerzy Kranz, 'L'affaire Allemagne contre Italie ou les dilemmes du droit et de la justice', in Peters, Immunities 2015 (n 28), 116–127; Andrea Gattini, 'Immunité et souveraineté dans l'arrêt de la Cour Internationale de Justice dans l'affaire Immunités juridictionnels de l'État', ibid, 223–235; Robert Uerpmann-Wittzack, 'Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges', ibid, 236–243.

30PCIJ, Mavrommatis Palestine Concessions (Greece v UK), Judgment of 30 August 1924, PCIJ Reports Series A, No 2, 12.

31ILC, Draft Articles on Diplomatic Protection with Commentaries, adopted by the Commission at its fifty-eighth session in 2006, UN Doc A/61/10, Art 1, commentary, para 3.

In international human rights law, the 1984 UN Convention against Torture demands that member states provide an individual right to compensation invokable by victims before domestic courts; this right must include means for comprehensive rehabilitation.32 In other protection systems such an obligation of redress is framed in more general terms. Regional human rights courts use different powers to decide on reparations. The wording of Article 41 ECHR aims at pecuniary compensation, but it is the obligation to comply with ECtHR judgments (Article 46 ECHR) which is read to encompass non-pecuniary consequences, such as the duty to halt violations and, if necessary, to amend statute law or to reopen judicial and administrative proceedings.33 The language of Article 63 of the American Convention on Human Rights goes further than Article 41 of the ECHR in spelling out that a breach of rights 'be remedied and that fair compensation is made'. 34 The African Court of Human and Peoples' Rights may 'make appropriate orders to remedy the violation, including the payment of fair compensation and reparation'. 35 The reach of these Conventions coincides with the 'jurisdiction' of the respondent state party, which is understood to refer to its territory and also covers exterritorial acts if the state exercises control, for example through an army in occupied territory.36

The central compensation clause in international criminal law is Article 75 of the Rome Statute.37 The International Criminal Court can develop guidelines for reparation and may order compensation for victims to be paid either by the perpetrator or by a trust fund that the state parties can establish (Article 79 Rome Statute). Victims have no right, as a party to the proceedings, to direct a claim against the accused. However, they may file an application with the registrar of the court which has the power to order pecuniary reparation if the accused is convicted.38

In humanitarian law, Article 91 of the first Additional Protocol to the Geneva Conventions of 1949 declares that states that violate the Conventions are liable for

32Art 14 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, in force 26 June 1987, 1465 UNTS, 85.

33International Law Association, Johannesburg Conference, International Human Rights Committee, 'Final Report International Human Rights Law and the International Court of Justice (ICJ): The Domestic Implementation of Judgments/Decisions of Courts and Other International Bodies that Involve International Human Rights Law', Part Two, (2016), para 15.

34American Convention on Human Rights of 22 November 1969, UNTS 1144, 123.

35Art 27 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights of 9 June 1998, OAU Doc OAU/LEG/EXP/ AFCHPR/PROT III; a similar formula is used in Art 45 of the Protocol on the Statute of the African Court of Justice and Human Rights of 1 July 2008, reprinted ILM 48 (2009), 334, though not yet in force.

36ECtHR, Ilascu v Moldova and Russia, Judgment of 8 July 2004, Application No 48787/99, paras 387-394; ECtHR, Al-Skeini and Others v UK, Judgment of 7 July 2011, Application No 55721/07, paras 138-142; for acts outside occupied territory, see ECtHR, Bankovic and Others v Belgium and Others, Decision of 12 December 2001, Application No 52220/99, paras 67-73.

37Rome Statute of the International Criminal Court of 17 July 1998, UNTS 2187, 3.

38William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: OUP 2010), 879-882.

damages.39 The official commentary of the International Committee of the Red Cross is sympathetic to a reading that this provision presupposes a claim of the individual and to reparation, but the matter remains disputed. At least there is a tendency in customary law to recognize standing of individuals to invoke these rights before courts.40 Even though it appears that domestic courts, at least in Germany, are still reluctant to accept the individual orientation of humanitarian law when it comes to its being integrated into the domestic concept of state responsibility,41 they rarely rule out this possibility.42 At any rate, as of now the standing of the individual before courts to invoke these rights is not yet generally recognized. All that humanitarian law explicitly prescribes is that neither protected persons nor their home states may waive the rights guaranteed in the Geneva Conventions.43

A development towards individualization can also be observed in the processing of mass claims. In the administration of damages after the invasion of Kuwait by Iraq, the United Nations Compensation Commission (UNCC) dealt with different categories of individual claims.44 Eligibility for compensation included any direct loss and damage arising from this incident, which could have been a breach of humanitarian law. The home states were not regarded as holders of these claims but as agents of their nationals (and stateless persons which they represented). The UNCC also monitored payments to the claimants made by the recipient states that had an obligation to report.

The International Law Commission's (ILC) Articles on State Responsibility likewise recognize the possibility of individual rights to reparation. Their Article 33(2) states that the rules on the content of responsibility are 'without prejudice to any right, arising from the international responsibility of a state, which may accrue

39First Protocols Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, UNTS 1125, 3.

40Jean de Preux, 'Article 91—Responsibility', in Claude Pilloud et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 in Yves Sandoz/Christophe Swinarski/Bruno Zimmermann (eds), (Geneva: Nijhoff 1987), 1053-1058, at 1056-1057; Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law (Volume I: Rules), (Cambridge: CUP 2005a), 541-545.

41Bundesverfassungsgericht, Order of 13 August 2013, 2 BvR 2260/06 (Bridge of Varvarin); Bundesgerichtshof, Judgment of 6 October 2016, III ZR 140/15, NJW 2016, 3656 (Kunduz).

42See reference in Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law (Volume II: Practice), (Cambridge: CUP 2005b), 3560-3609.

43Cf Arts 7 and 8 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, UNTS 75, 135; Arts 7 and 8 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, UNTS 75, 287.

44Cf Stefan Kadelbach, 'Staatenverantwortlichkeit für Angriffskriege und Verbrechen gegen die Menschlichkeit', Berichte der Deutschen Gesellschaft für Völkerrecht 40 (2003), 63-105, at 90-92. See also Christian Tomuschat, chapter 'The Illusion of Perfect Justice', and Filippo Fontanelli, chapter 'Sketches for a Reparation Scheme', in this volume.

directly to any person or entity other than a state'. 45 According to the ILC commentary thereto 'the individuals concerned should be regarded as the ultimate beneficiaries and in that sense as the holders of the relevant rights'. 46

Thus, the traditional concept of state responsibility appears to be ceding to a model of split entitlement: the victims are recognized as holders of the claims, but the procedural right to espouse these claims on their behalf is still in the hands of the states. This notion is also taken up in the work of the ILC project on diplomatic protection, which recognizes that a state in presenting such a claim '"in reality" (...) also asserts the rights of its injured national'. 47

### IV. Prospects for Future Regimes of Compensation and Reconciliation

What would a compensation regime have to look like in order to absorb the developments sketched out in the preceding section? There can be no doubt that such a scheme would be based on the concept that individuals are the holders of claims to restitution, compensation, and satisfaction. The question is how these claims can be administered in a way that recognizes them without discouraging other efforts to reach a constructive settlement.

The central issue is who may present such claims. It is still the practice that states act on behalf of their nationals or other persons for whom they are responsible. The power of the UNCC to monitor the transfer of compensation by the victim's home state pays tribute to the fact that this state does not espouse its own claim and may serve as a model solution to the problem that victims frequently do not receive any payment. The need to concentrate the process and to administer it effectively advocates in favour of maintaining the mechanism of diplomatic protection in principle. The question is whether this model should as a matter of policy48 prevent individuals from bringing suits before domestic courts. As far as treaty systems address this point, they provide for the exclusiveness of the established scheme, such as the peace treaty between Ethiopia and Eritrea of 2000.49 Another path would be

45ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its fifty-third session in 2001 (Final Outcome), UN Doc A/56/10, 43, UN Doc A/RES/56/83, Annex, UN Doc A/CN.4/L.602/Rev.1, GAOR 56th Session Supp 10, 43. 46Ibid.

47ILC, Draft Articles on Diplomatic Protection, 2006 (n 31), Art 1, commentary, para 3; cf also Peters, Beyond Human Rights 2016 (n 28), 161-164; 389-407.

48Compensation agreements are not a legal obstacle; see FCC, Order of 13 May 1996 (n 23).

49Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia for the resettlement of displaced persons, as well as rehabilitation and peacebuilding in both countries (Algiers Agreement), 12 December 2000, 2138 UNTS 93, Art 5 (8).

mutual exclusion such that the registration of a claim requires that no other proceedings are pending.50

A second crucial point is whether there can be an upper ceiling to the total amount of compensation, as it is one of the rationales of a lump sum agreement. Examples in history to the contrary seem discouraging and atypical. They include past generations of peace treaties, but also the compensation obligations Iraq incurred following its invasion of Kuwait. In that case reparation was not mutually agreed but one-sidedly imposed and financed by the sequestrated proceeds of the Iraqi oil production.51 These examples notwithstanding, however, contemporary human rights law points at a distinction between damages resulting from serious crimes against life, integrity and personal liberty on the one hand, and other types of claims on the other hand. Whereas claims of the latter kind may still be negotiable, there is little space for limiting claims for serious human rights violations. It is widely recognized that serious crimes must entail investigations and, where the proceedings yield pertinent evidence, the indictment of the persons responsible.52 It would contravene the strict stance human rights law takes in this respect to exclude claims altogether, be it only by limiting the funds at a court's disposal.

However, it seems possible to provide for time limits for the registration of claims, if these limitations are not unduly short and made public in a way that the entitled can come to know of their rights. Recent models of mass claim processing are therefore compatible with the need to provide adequate reparation. They have the advantage of accelerating the procedure and of establishing unified methods for evaluating evidence. For that reason, the UNCC distinguished between different types of claims and typified the outcomes in the form of fixed amounts. There have also been inbuilt time constraints, in that deadlines for registration were set and an end to the proceedings was envisaged as a predefined point in time. In more complex proceedings one might also think of fixed time limits for every step in the procedure, as is the practice before some arbitral tribunals. Such efforts to speed up the procedure would be one lesson from past lump sum settlements, as it can take decades between the taking up of the claim and payment to the injured person.

For the financing of reparation claims, funds have been created or are foreseen which are administered by claims commissions, arbitral tribunals, or courts. Examples are national foundations in Austria and Germany and the victims trust fund mentioned in Article 79 of the Statute of the International Criminal Court.

Finally, remedies other than financial compensation, which are covered by the concept of satisfaction, may help to overcome serious human rights violations. One

50Cf Hess, 'Kriegsentschädigungen' 2003 (n 21), 163.

51See Kadelbach, 'Staatenverantwortlichkeit' 2003 (n 44).

52IACtHR, Barrios Altos v Peru, Judgment of 14 March 2001, Ser C 75, operative para 4; IACtHR, Almonacid Arellano et al v Chile, Judgment of 26 September 2006, Ser C 154, para 119; ECtHR, Mocanu and Others v Romania, Judgment of 17 September 2014, Applications Nos 10865/09, 45886/07 and 32431/08, para 321.

might profit from the experience of national reconciliation efforts53 but also from the jurisprudence of the Inter-American Court of Human Rights, which has ordered official apologies, memorials, the naming of streets and other measures of that kind.54

#### V. Conclusions

If there is an inter-temporal dimension to the case, it does not show primarily in the fact that the law of compensation was different at the time of WWII compared to the present. Rather, it is to be seen in the antagonism between subject matter and procedural law: whereas we are witnessing an increasing empowerment of the individual with respect to his or her rights in international law, the modes of implementing these rights are still strictly consensual. The individual has no standing before international courts or national courts of a foreign state unless states are willing to grant it, be it by agreement or by the waiver of immunity. Two different layers in the 'geology of international law' 55 overlap, with the result that the ICJ has made it clear that immunity is still an obstacle to domestic jurisdiction for individual compensation claims. Therefore, Italy is under an obligation to indemnify Germany, both by virtue of this judgment and the bilateral compensation agreement of 1961, in case a domestic court should grant an order of execution.

This outcome is counter-intuitive and raises the concern of how convincing political statements embracing human rights really are. It is therefore necessary to find a conciliatory solution as it is also suggested in the obiter dictum to the ICJ judgment, which stresses that claims by Italian victims of war crimes whose entitlements to reparation have not yet been recognized 'could be the subject of further negotiations between the two States concerned with a view to resolving the issue'. 56

The state of proceedings in Italy appears to open a window of opportunity. Some interpret Sentenza 238/2014 as abstract in nature, without entailing cogent consequences for pending and future cases. In particular, the distinction was stressed between immunity from jurisdiction and immunity from enforcement. The fact that the ICJ held that the latter 'goes further than the jurisdictional immunity' 57 should be

53See also the Agreement between the Government of Canada and the National Association of Japanese Canadians of 22 September 1988, reported by Henckaerts/Doswald Beck, CIHL Rules (n 40) 542 and CIHL Practice (n 42), 3602.

54Cf, inter alia, IACtHR, González et al v Mexico, Judgment of 16 November 2009, Ser C 205, para 471 (Cotton Field).

55To borrow a term used by Joseph H H Weiler, 'The Geology of International Law: Governance, Democracy and Legitimacy', Heidelberg Journal of International Law 64 (2004), 547-562.

56ICJ, Jurisdictional Immunities (n 3), para 103.

57Ibid, para 113.

a reason for Italian courts to reflect on the matter and halt procedures.58 The two governments, in turn, might use the period of suspension to engage in a conciliatory solution.

How could the issue be resolved? One suggestion has been to create a fund in which both states take a share:59 Germany for obvious reasons and Italy because it failed to identify victims and take care of their fate. Companies which profited from forced labour and other private donors could be encouraged to participate. The total amount available should be dependent on the number of victims still alive; claims could be restricted to direct victims and their spouses. Payment should be made directly to the entitled persons. The total sum of money to be paid out in the end would certainly not be high, considering the shrinking number of claimants, the more so if compared to other expenditures that figure prominently in state budgets. If experience with past settlement procedures and reconciliation commissions is representative, the pecuniary aspect is not even the most important. Perhaps more relevant are the ways to provide some form of recognition of the injuries suffered and the consequences they had on the lives of victims and their next of kin.

Since the affected persons lives' are approaching their end, both structure and procedure must be organized in such a way as to allow for speedy processing. This consideration points in favour of a commission rather than an arbitral tribunal, composed of representatives from both states or even independent experts who are familiar with such procedures, as they may be found, for example, in the International Organization for Migration. Procedures could follow the experience with mass claim proceedings as far as the categorization of claims and evidence are concerned. To lower the threshold, the constitutive agreement could stress that the solution found would constitute no prejudice for claims raised by other states and would not imply the recognition of a legal commitment beyond the immanent logic of the system created.

#### VI. Epilogue

It is only a ten-minutes' drive away from Frankfurt University, where this chapter has been written, to the cemetery of Westhausen. A section of this cemetery is known as the Cimitero di Guerra Italiano, where 4,788 Italian men, women and

58For pertinent jurisprudence, see Karin Oellers-Frahm, 'A Never-Ending Story: The Italian Court of Justice—The Italian Constitutional Court—Italian Tribunals and the Question of Immunity', Heidelberg Journal of International Law 76 (2016), 193-202, at 197-198; Giovanni Boggero, 'The Legal Implications of Sentenza No. 238/2014 by Italy's Constitutional Court for Italian Municipal Judges: Is Overcoming the "Triepelian Approach" Possible?' Heidelberg Journal of International Law 76 (2016), 203-224, at 219-221. See also Giovanni Boggero/Karin Oellers-Frahm, chapter 'Between Cynicism and Idealism', in this volume.

59See Francesco Francioni, chapter 'Overcoming the Judicial Conundrum', in this volume. See also Andreas von Arnauld, chapter 'Deadlocked in Dualism', in this volume.

children were buried. They died between 1943 and 1945, either from illness, starvation, exhaustion, or during hostilities and air raids. A number of them had come to Germany in the 1930s as workers and were interned for forced labour in 1943 after Italy had changed sides in the war; many were soldiers, and had been captured as IMIs, others were partisans, political prisoners or victims of deportation. It still happens that a family discovers the name of a grandfather, a sister or a cousin who had been missing for decades. If they wish, the Italian Consulate General organizes for the remains to be transferred back home. A plate with the inscription 'rimpatriato' is then attached to the tombstone.

The conviction that the horrors of the past must be overcome has inspired many ambitious projects, a common and unified Europe being amongst the most important. Germany and Italy have contributed to this European success for more than 60 years. To continue to do so is an obligation that goes beyond positive law.

#### References

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## Sketches for a Reparation Scheme: How Could a German-Italian Fund for the IMIs Work?

#### Filippo Fontanelli

Abstract Given the deadlock in the current negotiations between Germany and Italy and the unavailability of judicial remedies for the victims, the two states could set up a reparation scheme. This chapter sketches some of the main features of such a hypothetical scheme, considering existing internal or international arrangements in the context of transitional justice (the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) scheme; the Australian DART scheme; the deal between Japan and South Korea on reparations to 'comfort women'; the US/French schemes for reparations and restitution to holocaust victims; the Eritrea/Ethiopia reparations scheme; and the Iraq/Kuwait scheme). In particular, the emphasis is on the system of identification of the eligible victims, the question of financing and the fate of pending and future judicial claims. Assuming the states' willingness to explore this project, the chapter outlines some of the ways the scheme could operate in practice, drawing from existing models.

F. Fontanelli (\*)

© The Author(s) 2021 V. Volpe et al. (eds.), Remedies against Immunity?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 297, https://doi.org/10.1007/978-3-662-62304-6\_8

I am grateful to the PAX Peace Agreement Database staff who helped me to retrieve the text of several relevant agreements. I also thank the law schools of Universidad de la Sabana (Bogotá) and LUISS Guido Carli (Rome), where I resided at the time of writing.

University of Edinburgh, Law School, Edinburgh, UK e-mail<EMAIL_ADDRESS>
#### I. Introduction

Should Germany and Italy decide to set up a joint compensation (or reparation)1 fund for Italian Military Internees (IMIs) and other victims of Nazi crimes (referred to, when taken together, as the 'Italian victims') who have yet to obtain any reparation,2 what would this fund look like? This chapter's analysis takes for granted some of the conclusions and findings explored more fully in the other chapters in this volume. It therefore does not seek to determine whether the two states—as a matter of law, comity or pragmatism—must, should, or even could3 accept the establishment of a joint fund.4 The working assumption here is that there nevertheless exists the political will to make such a choice.5 Arguably, this resolution would constitute an elegant way to cut the Gordian knot of the immunity deadlock and grant overdue reparation to the victims. It might also be that the operation of such a fund could suffice for the Italian Constitutional Court (ItCC) to revise its stance on the granting of immunity to Germany in civil proceedings before Italian courts. This prospect remains subject to speculation, and is more fully explored by Paolo Palchetti and Riccardo Pavoni in their respective chapters.6 Furthermore, this chapter will also not

1 Words matter, and in this case the reference to reparation rather than compensation might be appropriate, both to second Germany's inclination to consider any payment made as a matter of comity rather than obligation, and to account for the lump-sum nature of any potential payment (as opposed to payments measured upon the actual extent of damage suffered by each victim). A similar switch is discernible, for instance, in the formulation of the Australian Defence Abuse Response Taskforce (DART) scheme, which was envisioned as a compensation scheme but ended up being officially labelled as a reparation scheme. See, for more details, Simone Degeling/Kit Barker, 'Private Law and Grave Historical Injustice: The Role of the Common Law', Monash University Law Review 41 (2015), 377-413, at 380 et seq, in particular note 9.

2 Alongside IMIs, who are the majority of potential applicants, other groups could be covered by the compensation scheme, including civilians subjected to forced labour and victims of mass killings.

3 On the legal regime on the granting of compensation under German law, see Andreas von Arnauld, 'Damages for the Infringement of Human Rights in Germany', in Ewa Bagińska (ed), Damages for Violations of Human Rights (Heidelberg: Springer 2016), 101-136.

4 In short, whether Germany owes such reparation as a matter of law is disputed. The ICJ decided not to admit Italy's counterclaim in the Jurisdictional Immunities dispute and, therefore, has not addressed the issue. Germany claims that compensation for the IMIs was already included in the sums paid under the bilateral treaty of 2 June 1961.

5 On the political opportunity of reparation movements, and how it affects their rate of success, see Stephanie Wolfe, The Politics of Reparations and Apologies (Heidelberg: Springer 2014), 11-12.

6 See Riccardo Pavoni, chapter 'A Plea for Legal Peace', in this volume, who notes that '[t]here are sound reasons for believing that the setting up of a meaningful compensatory procedure would lead to the suspension or termination of the remaining cases pending against Germany before Italian courts', at 94. On this point, see also Paolo Palchetti, 'Italian Concerns after Sentenza 238/2014: Possible Reactions, Possible Solutions', VerfBlog, (11 May 2017), available at https:// verfassungsblog.de/italian-concerns-after-sentenza-2382014-possible-reactions-possible-solutions/ : '[A] political initiative involving Germany and Italy and aimed at establishing a mechanism for addressing the reparation claims of the victims might be regarded by the Constitutional Court as an adequate alternative route for providing protection to the rights of the victims, thereby justifying a limitation to the right of access to court and the recognition of Germany's immunity'. In the chapter

address the chronological conundrum regarding the victims' characterization under international humanitarian law.7 Instead, it will be assumed that, under the prevailing approach, Italian victims should receive some reparation irrespective of the legal characterization of Germany's conduct at that time.

In light of these assumptions, the narrow focus of this chapter will be on certain practical features and arrangements of the possible joint scheme to come (the 'Joint Scheme'). Selected matters will be addressed, such as the funding of the Joint Scheme, procedures for the distribution of compensation (including the criteria of eligibility and the appointment of a competent authority for the review of individual applications), and the waiver of judicial claims.

An attempt is made to draw on extant schemes without presuming any significant similarity between them. Quite simply, the idea is to look at existing solutions and provide the architects of the Joint Scheme with a range of options that could be utilised alongside a handful of warnings. As this chapter ends the substantive section of this volume, it marks an opportune moment to point the way (or ways) ahead for the Italian and German authorities.

Sections II and III concern two domestic schemes implemented by Germany and Australia respectively. Section IV addresses selected payment schemes established at the interstate level. Section V concludes the chapter by drawing the threads together and sketching some features of the Joint Scheme. Although section V provides a distilled checklist, the intermediate sections account for its composition.

This chapter's intention is to identify some valid principles that could inform the Joint Scheme's construction and compose a roadmap. Ultimately, however, the conviction is that a Joint Scheme for reparations, whatever its make-up, is preferable to none. This chapter builds on both these intuitions, which Adrian Vermeule effectively juxtaposed when concluding upon the desirability of less-than-perfect reparation schemes:

Viewed in the concrete, both transitional and nontransitional programs or awards of compensation are often disastrously unprincipled. We must step back a mile or three, to reflect that in many cases the only other option not ruled out by political constraints—doing nothing at all—would be even worse.8

A Joint Scheme would be, therefore, a vessel of 'rough justice', a device preferable to inaction albeit inevitably flawed under the prevailing standards of

'Right of Access to (Italian) Courts über alles?', of this volume, Palchetti reiterates the underlying question: 'It is not clear (...) whether an interstate agreement on compensation might be regarded by the ItCC as an adequate alternative route for providing protection to the rights of the victims, thereby justifying a limitation to the right of access to court and the recognition of Germany's immunity', at 50. This question raises the issue of Italian constitutional law, which exceeds the scope of this chapter.

7 Their status as victims of war crimes was recognized after the conduct took place, in the III and IV Geneva Conventions of 1949. See also Andreas von Arnauld, chapter 'Deadlocked in Dualism', in this volume.

8 Adrian Vermeule, 'Reparations as Rough Justice', University of Chicago Public Law & Legal Theory Working Paper 105 (2005), 1-18, at 15.

justice.9 While roughness is both inevitable and acceptable, the Joint Scheme should not be unprincipled. This chapter gathers, and expatiates on, the appropriate principles. While designed to address the unresolved status of IMIs, this chapter could as well work as blueprint for any mechanism of financial reparations in the wake of historical injustice, mutatis mutandis.

In particular, the Decalogue-redolent list of section V does not lay the ground rules for a reparation scheme (for IMIs), but for any reparation scheme.

#### II. Next of Kin: The RRF Foundation

A useful template to shape the Joint Scheme is the law establishing the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) (RRF).10 Germany entrusted the RRF with the payment of compensation to applicants who were victims of forced labour and other 'injustices' perpetrated by the Nazi regime.11 IMIs were unable to obtain compensation under this law, which expressly excluded prisoners of war from its application.12 Other victims of Nazi crimes, including the victims of mass killings, were altogether outside the scheme's reach. The point here is not to question the Foundation's decision to reject the IMIs' applications or the scope of application of the RRF but rather to consider the functioning of the compensation system established under the RRF Law. It is quite detailed and might serve as a model for the Joint Scheme's machinery.

The financing for the RRF fund was provided by the German federal government and a consortium of German companies.13 The government and German industry each made a one-off contribution to the RRF fund of DM (Deutsche Mark) five

9 Ibid, describing rough justice as 'the intuition that sometimes it is permissible, even mandatory, to enact a scheme of compensatory reparations that is indefensible according to any first-best criterion of justice. Rough justice is indefensible; it seems attractive only when compared to no justice–when it is recognized that the status quo of inaction is also a proposal, one that may fare even worse, according to the same criteria that would condemn the relevant reparations proposals'.

10German Law Instituting the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) of 2 August 2000, Bundesgesetzblatt I 11 August 2000, 1263. For a commentary, see Bardo Fassbender, 'Compensation for Forced Labour in World War II: The German Compensation Law of 2 August 2000', Journal of International Criminal Justice 3 (2005), 243-252. See also Peer Zumbansen (ed), Zwangsarbeit im Dritten Reich: Erinnerung und Verantwortung—NS-Forced Labor: Remembrance and Responsibility (Baden Baden: Nomos 2002).

11RRF Law, 2000 (n 10), Art 2, para 1.

12Ibid, Art 11, para 3. On the application of this carve-out, see ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, para 26. The commentary to the law specified that 'the rules of international law allowed a detaining power to enlist prisoners of war as workers'.

13RRF Law, 2000 (n 10), Art 3, para 1.

billion.14 A board of trustees, composed of 27 members, obtained responsibility for its management. These included, besides a number of German officials, one representative for each country, ethnic or national group amongst the prospective applicants (namely Israel, the US, Poland, Russia, Ukraine, Belarus, the Czech Republic, Roma and Sinti, and Jews) and other institutional members (from the UN and other international institutions).15

The Foundation did not directly carry out the distribution of compensation. The funds were made available to a series of non-profit 'partner organizations', each responsible for receiving claims from a specific group of applicants. These organizations were tasked with the liquidation of successful claims16 and with the establishment of an appeal process for the review of first instance determinations.17

Specific provisions required payments to be suspended or only partially made until the exhaustion of applications, in order to prevent the Fund from depleting its resources and becoming insolvent, thus failing to satisfy all eligible applications after paying out early processed claims.18 For instance, the maximum payable amount to each applicant eligible as 'slave labourer' was set initially at 50% of the amount owed. The outstanding portion was paid out 'after conclusion of the processing of all applications pending before the respective partner organization, to the extent possible within the framework of the available means.' 19

The RRF Law contained a specific provision detailing the eligibility of applicants for compensation.20 It covered persons subjected by German authorities or commercial companies to forced labour, and subjected to detention or harsh living conditions.21 It also stipulated the possibility of compensating property losses if the applicants had been unable to seek compensation under previous schemes.22 The burden of demonstrating eligibility lay primarily with the applicants, although the competent partner organization would normally provide and consider available

14Ibid, Art 3, paras 2 and 3. The current value of this 2001 donation, adjusted for inflation, would be in the area of €2.64 billion.

15Ibid, Art 5.

16Ibid, Art 9.

17Ibid, Art 19.

18Ibid, Art 9, paras 9-10.

19Ibid, para 9. The clause also requires that 5% of the monies allocated be set aside as a financial reserve for appeals, and that the second round of payments be made only after such reserve has been set up.

20Ibid, Art 11. In other words, the Law made hardship a necessary requirement for compensation alongside that of forced labour. See Fassbender, 'Compensation' 2005 (n 10), 249: 'Parliament's attention focused on persons detained in concentration camps on the one hand and deportees on the other–and not on forced labourers as such.'

21RRF Law, 2000 (n 10), Art 11, para 1, numbers 1 and 2.

22Ibid, Art 11, para 1, number 3. Liquidation of these claims was only residually possible, that is, 'only after all applications pending before the competent commission have been processed'.

aggregate information to complement the evidence provided by the individuals.23 The competent organization was authorized to accept, on a case-by-case basis, applications deprived of supporting documentation. For the most part, claims were strictly personal and, if the application related to the loss of property, heirs could bring it only if the victims had died after February 1999.24

As for the amount of compensation granted to successful applicants, the RRF Law set a cap of DM15,000 (approximately €7,600) for internees in concentration camps ('slave labourers') 25 and DM5,000 (approximately €2,530) for applicants who, outside of concentration camps, were subjected to other forms of harsh treatment, confinement and detention ('forced labourers').26 A total of DM8.1 billion was ear-marked for compensating slave (and forced) labour, with DM50 million and DM1 billion budgeted, respectively, to compensate other personal injuries and property losses.27 DM700 million were instead reserved for separate projects of the Foundation other than compensation.28

The transfer of funds awarded under the compensation scheme was conditional on a previous declaration of 'legal peace' made by the German parliament, certifying the dismissal of all lawsuits pending abroad.29 The Law also prescribed that compensation claims could only be brought under the procedures established thereunder, to the exclusion of all other claims.30 Applicants would waive all other avenues of redress, and the waiver would take effect at the moment of payment.31 To endorse the unilateral preclusion of other claims effected by Germany, the US government issued a statement of interest in every dispute brought before US courts—effectively validating the choice of forum made in the Law and requesting that the individual claim be redirected to the RRF.32

To ascertain the viability of adopting similar solutions in a Joint Scheme, a few essential traits of this compensation scheme should be isolated. Some elements seem

23Ibid, Art 11, para 2: 'Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organization shall bring in relevant evidence. If no relevant evidence is available, the claimant's eligibility can be made credible in some other way.'

24Ibid, Art 13, para 1.

25This terminology is employed in Libby Adler and Peer Zumbansen, 'The Forgetfulness of Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich', Harvard Journal on Legislation 39 (2002), 1-62, at 2.

26RRF Law, 2000 (n 10), Art 9, para 1.

27Ibid, Art 9, paras 2-4.

28Ibid, Art 9, para 7. The Foundation has carried out several 'Funding Activities', especially in the field of historiography and the remembrance of victims, through the building of an online database, the organization of encounters with former forced labourers and other victims, the funding of educational projects, etc. See 'Funding Programmes of the Foundation EVZ', available at www. stiftung-evz.de/eng/funding/.

29RRF Law, 2000 (n 10), Art 17, para 2.

30Ibid, Art 16.

31Ibid, Art 2.

32See Adler and Zumbansen, 'The Forgetfulness' 2002 (n 25), 4.

fit for transplant: the quid pro quo nature (dismissal and waiver of lawsuits in exchange for compensation), the administrative process of claims liquidation, the intentional ambiguity regarding the legal basis for addressing injustices, entrusting the governance of payment processes to non-profit organizations, the flexible evidentiary principles, and the prescription of a possibility to challenge liquidation decisions and obtain their review.

Other elements of the RRF scheme appear less appropriate. The non-eligibility of heirs would frustrate the effectiveness of the Joint Scheme, given the timeframe of the crimes for which reparation is due. Some commentators criticized the Law for showing, on the part of Germany, 'no remorse, no confession, and no sense of debt for the merciless treatment' of the victims.33 The quantification of compensation caps is also an obviously delicate matter. Forced labourers employed outside concentration camps (non-slave labourers) received a sum that could be considered low against several plausible baselines (for instance, the DM5,000 cap meant, for most applicants, that the amount awarded was lower than what they would have received had they been paid the minimum wage for the labour service supplied at that time).

#### III. DART: The Australian Solution

Since 2011, Australia has been coping with a barrage of individual complaints relating to sexual and other forms of abuse allegedly perpetrated by personnel of the Australian Defence Force.34 After evidence emerged of systemic problems, the government established the Defence Abuse Response Taskforce (DART), which was to assess individual complaints and determine the appropriate response thereto.35

A range of possible responses were offered, including restorative justice/conferencing processes, counselling, compensation capped at A\$ (Australian Dollars) 50,000,36 and the referral of matters to criminal prosecution and/or the military

33Ibid, 5-6.

34The cut-off date for the alleged actions was 11 April 2011, when the law firm DLA Piper, upon the government's commission, completed an investigation into the matter, see Garry A Rumble/ Melanie McKean/Dennis Pearce, Report of the Review of Allegations of Sexual and Other Abuse in Defence: Facing the Problems of the Past, Volume—General Findings and Recommendations (Canberra: DLA Piper 2011).

35For a positive assessment of DART, see Alikki Vernon, 'The Ethics of Appropriate Justice Approaches: Lessons from a Restorative Response to Institutional Abuse', Law in Context 35 (2017), 139-158.

36Approximately €32,700 at the rate prevailing at the time of writing.

justice system.37 Nearly all applicants requested monetary reparation.38 The focus of this study will only be on the monetary reparation system. Nonetheless, the scheme was remarkable for providing a diverse set of remedies. In particular, the DART process acknowledged the need for victims to have their complaints heard and their grievances accepted by the Australian Defence Force, while also devising a specific engagement procedure to that effect.39

It is important to note that although DLA Piper (the law firm tasked with carrying out the initial investigation) recommended establishing a 'compensation' plan and the ministry initially agreed, the resulting plan was re-branded as a 'reparation' scheme. As it is expressly stated in the reparation guidelines, payments made should not be understood to represent compensation, nor to imply an assumption of state liability.40 Moreover, participation in the reparation scheme does not foreclose the right to resort to domestic courts. Tribunals are merely reminded to take into account the amount of reparation granted under the DART scheme to liquidate damages in tort or statute.41

The DART reparation scheme was handled as a purely administrative process.42 Eligible applicants were all persons who were employed in the Australian Defence Force and alleged to have suffered abuse effected by Defence Force personnel, subject to certain deadlines for the presentation of the complaint.43 Applications consisted of a reparation form, a personal account of the alleged abuse (and any related follow-up procedure exhausted within the Defence Force), and proof of

43Ibid, para 3.1.4.

37See Australian Senate Foreign Affairs, Defence and Trade References Committee, 'Report of the DLA Piper Review and the Government's Response', (27 June 2013), available at https://www.aph. gov.au/Parliamentary\_Business/Committees/Senate/Foreign\_Affairs\_Defence\_and\_Trade/Com pleted\_inquiries/2010-13/dlapiper/report/index, para 2.50, referring to an action plan announced on 26 November 2012 by the Minister for Defence, the Honourable Stephen Smith MP, in response to the DLA report.

38The breakdown of remedies granted is as follows (out of 1,751 processed complaints): '[A] reparation payment (1,723 complainants at a total cost of US\$66.63 million); counselling (577 complainants); participation in the Restorative Engagement Program (715 complainants); referral to police for possible criminal investigation and prosecution (133 complainants); and referral to the Chief of the Defence Force for consideration of possible administrative or disciplinary action (132 complainants)'. See Australian government, 'Defence Abuse Response Taskforce Final Report', (31 March 2016), available at https://core.ac.uk/download/pdf/51343294.pdf, 11.

39Vernon, 'The Ethics' 2017 (n 35), 146, records the motivation of establishing the so-called Restorative Engagement Conferences: 'The consistent request from complainants was to: have their personal account of abuse listened to by Defence; have their personal account accepted as true; be given acknowledgement that the abuse was wrong and should not have happened'.

40Australian government, 'Defence Abuse Reparation Scheme Guidelines', available at www.aph. gov.au/DocumentStore.ashx?id¼7d8a8c38-f721-42cf-baed-3538593a3ee4, para 1.6.1: 'A payment to a person under the Reparation Scheme is not paid as compensation or damages for any asserted, perceived, or possible legal liability on the part of the Commonwealth, or for any injury, disease or impairment, and does not constitute an admission of liability on the part of the Commonwealth.'

41Ibid, para 1.6.2.

42Ibid, para 2.1.6: '[H]earings, negotiations or appeals' were not envisaged for its functioning.

identity. Reparation was not available for applications made regarding deceased persons.44

The evidentiary standard required of applicants is worth careful analysis. The individual account of the abuse is expressly presumed to correspond to the 'person's personal experience of alleged abuse' unless evidence emerges to contradict it.45 Additional information might be sought from either the applicant or the Defence Force. The Defence Force's failure to submit documents requested by the taskforce would result in a presumption that the Defence Force is unable to contradict the information provided by the applicant,46 though it would ultimately be for the competent assessor47 to form an opinion on the merits as to the 'plausibility' of the applicant's allegations.48 There is no classic treatment of the burden and standard of proof, nor is there a precise system of reversals; the assessor's opinion, based on any available evidence, is the controlling criterion of any payment determination. In the words of the assessor:

The plausibility test was also pivotal in humanely considering complaints from many individuals who were aged, frail or in a vulnerable state of health or wellbeing or otherwise reluctant or unable to recount often very traumatic instances of abuse.49

DART-awarded reparations were classified in pre-fixed amounts corresponding to the varying gravity of the alleged abuse.50

The DART scheme, insofar as it did not preclude the victims' access to judicial redress, is not a pertinent model for the Joint Scheme because it did not ensure legal peace. However, some of its features might be effectively transplanted. The system

44Ibid, para 3.7.1.

45Ibid, para 4.3.1.

46Ibid, para 4.4.1.

47The Reparation Payment Assessor was appointed by the Minister of Defence to review abuse applications and determine whether a payment would be made, and the amount thereof. The designated assessor was Robyn Kruk, a retired senior Australian public servant.

48Ibid, para 4.5.1: The plausibility standard entailed that individual applications were upheld when the allegations had 'the appearance of reasonableness'; see Vernon, 'The Ethics' 2017 (n 35), 146. 49Australian government, 'DART Final Report' 2016 (n 38), 62, Appendix I—Comments by the Reparation Payments Assessor.

50Categories 1 to 4 attract, respectively, a payment of A\$5,000 (approx. €3,200); A\$15,000 (approx. €9,600); A\$30,000 (approx. €19,200); A\$45,000 (approx. €28,800); see Australian government, Defence Abuse Reparation Scheme Guidelines (n 40), para 4.6.1. More than half of the applicants received payments relating to the most serious category of abuse. The types of abuses are reported in Annex 10 to the DLA Piper Report and are further grouped to facilitate the task of the taskforce into four genres (sexual abuse, sexual harassment, physical abuse, and harassment and bullying). Somewhat counter-intuitively, the four categories used for reparation purposes have little descriptive value and do not correspond to the type of abuse, but they are supposed to correspond to different degrees of gravity. As explained by the taskforce: 'A single incident of physical assault with no serious injury might fall in Category 1 or 2 (depending on the individual circumstances), while a serious sexual assault, such as a rape, would be expected to fall within Category 4.' See DART taskforce, 'Seventh Interim Report to the Attorney-General and Minister for Defence', (September 2014), 19.

of pre-fixed reparation amounts relating to certain recurring abuses and the use of a flexible standard of evidence are two solutions that might fit well with the operation of a Joint Scheme.

#### IV. Other Compensation Schemes

#### 1. Eritrea/Ethiopia

Within the regime of the Algiers Agreement, which put an end to the border war between Eritrea and Ethiopia, the parties provided for the establishment of an independent Claims Commission. Such a Commission was competent to decide through arbitration the claims brought by either state party, including claims made on behalf of individual citizens.51 The Commission's jurisdiction extended, inter alia, on claims for damages relating to breaches of international humanitarian law committed during the conflict by either party.52 The Commission was entitled to draft its own rules of procedure.53

Insofar as the Commission functioned as an arbitral tribunal, it does not seem to provide an adequate model for the Joint Scheme. The great advantage of the Joint Scheme would be that Germany does not object to the assumption of responsibility for the injustices perpetrated against IMIs. A review of compensation claims under the Joint Scheme would not implicate or require a determination of state responsibility for breaches of ius in bello or ad bellum—a determination that the

51Note that individuals were not afforded access to arbitration, which remained an interstate affair only.

52Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia for the resettlement of displaced persons, as well as rehabilitation and peacebuilding in both countries (Algiers Agreement), 12 December 2000, 2138 UNTS 93, Art 5.1: '1. Consistent with the Framework Agreement, in which the parties commit themselves to addressing the negative socio-economic impact of the crisis on the civilian population including the impact on those persons who have been deported, a neutral Claims Commission shall be established. The mandate of the Commission is to decide through binding arbitration all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law. The Commission shall not hear claims arising from the cost of military operations, preparing for military operations, or the use of force, except to the extent that such claims involve violations of international humanitarian law.'

53Which are available at the dedicated website of the Permanent Court of Arbitration; see Eritrea-Ethiopia Claims Commission, 'Rules of Procedure', available at https://pcacases.com/web/ sendAttach/774.

Commission, controversially enough, resolved to make.54 The Eritrea/Ethiopia experience, in other words, is mostly instructive a contrario. The Joint Scheme should not hinge itself on the ascertainment of Germany's responsibility through judicial or arbitral proceedings but only on the administrative review of the pre-determined eligibility criteria of the applicants and their claims.