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Compensation Claims for Human Rights Breaches Committed by German Armed Forces Abroad During the Second World War: Federal Court of Justice Hands Down Decision in the Distomo Case

Published online by Cambridge University Press:  06 March 2019

Sabine Pittrof

Extract

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In recent times, an increased awareness in public international law of the significance of human rights has given rise to the idea of direct access to compensation claims by individuals in the case of severe human rights breaches. This development has led to a number of actions for compensation in various jurisdictions. The Bundesgerichtshof (BGH – Federal Court of Justice) recently joined the series of decisions from higher courts addressing compensation claims for human rights breaches, handing down its landmark decision on compensation claims by Greek citizens whose parents were killed in a massacre in Distomo during the Second World War.

Type
Public Law
Information
German Law Journal , Volume 5 , Issue 1 , 01 January 2004 , pp. 15 - 21
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 See e.g. Wirth, Steffen, Staatenimmunität für internationale Verbrechen – das zweite Pinochet-Urteil des House of Lords, Jura 2000, 70.Google Scholar

2 See e.g. ECHR, Al-Adsani v. United Kingdom, Application no. 35763/97, Judgment of 21 November 2001, available at http://hudoc.echr.coe.int; Areopag, Prefecture of Voiotia v. Federal Republic of Germany, Case No 11/2000, Judgment of 4 May 2000; cf. also Markus Rau's review of the Al-Adsani - decision: After Pinochet: Foreign Sovereign Immunity in Respect of Serious Human Rights Violations – The Decision of the European Court of Human Rights in the Al-Adsani Case in 3 GERMAN L. J .6 (June 1, 2002) www.germanlawjournal.com. Another important example of this trend is the ever-increasing amount of litigation under the American Alien Tort Claims Act. The case involving Unocal Corporation and allegations of human rights violations in Myanmar has drawn world-wide attention. See, John Doe I v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2002); John Doe I v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2003) (rehearing en banc).Google Scholar

3 BGH, decision of 26 June 2003, III ZR 245/98, published in NJW 2003, 3488 et seq.Google Scholar

4 BGH NJW 2003, 3488.Google Scholar

5 Id.Google Scholar

6 Id.Google Scholar

7 Id.Google Scholar

8 Id.Google Scholar

9 Id.Google Scholar

10 Id.Google Scholar

11 District Court of Livadeia, Prefecture of Voiotia v. Federal Republic of Germany, Case No 137/1997, Judgment of 30 October 1997.Google Scholar

12 Cf. supra note 1.Google Scholar

13 For a more detailed account of the procedural history in the Greek courts see Elisabeth Handl, Introductory Note to the German Federal Court of Justice's Judgment in the Distomo Massacre Case, 42 ILM 1027.Google Scholar

14 BGH NJW 2003, pp. 3488–3489.Google Scholar

15 Id.Google Scholar

16 BGBl. II 1963, 109.Google Scholar

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18 The court initially also looked at the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of September 27, 1968, but decided that it was not applicable as compensation claims against a sovereign state for acts committed while exercising sovereign powers did not come under the definition of “civil and commercial matters” stipulated in the treaty.Google Scholar

19 BGH NJW 2003, 3488.Google Scholar

20 See e.g., Shaw, Malcolm N., International Law 494 (4th ed. 1997).Google Scholar

21 BGH NJW 2003, 3488 at 3489.Google Scholar

22 See e.g. Wirth's, Steffen article referred to in Footnote 1.Google Scholar

23 BGH NJW 2003, 3488 at 3489; for further reading, a selection of scholarly commentary on this topic can be found in the Court's decision at p. 3489.Google Scholar

24 BGH NJW 2003, 3488.Google Scholar

25 BGH, NJW 2003, 3488–3489.Google Scholar

26 Ibid. pp. 3489–3490.Google Scholar

27 Id. The controlling post-war compensation statute was the Bundesentschädigungsgesetz of September 1953, BGBl. I 1387.Google Scholar

28 BGH NJW 2003, 3488 at pp. 3489–3490.Google Scholar

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33 According to the Court, the legal basis for this is to be found in Art. 135a I No 1 Grundgesetz (GG-German Basic Law); cf. Bundesverfassungsgericht (Federal Constitutional Court) BVerfGE 15,126 at 145. Evidently, traces of Nazi – ideology to be found in the law of the time were not to be taken into account. BGH NJW 2003, 3488 at 3491.Google Scholar

34 BGH NJW 2003, 3488 at 3491.Google Scholar

35 BGH NJW 2003, 3488 at 3491.Google Scholar

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40 Though it certainly can serve as evidence of customary international law.Google Scholar

41 Geimer, Reinhold, Völkerrrechtliche Staatenimmunität gegenüber Amtshaftungsansprüchen ausländischer Opfer von Kriegsexzessen, LMK 2003, 215 concludes that state immunity also serves as a guarantee for peace between the states (p. 216).Google Scholar

42 Friedrich, Bettina, Federal Constitutional Court Grants Interim Legal Protection Against Service of a Writ of Punitive Damages Suit, 4 GERMAN L. J. 12, § 5 (December 1, 2003) www.germanlawjournal.com Google Scholar