Denying Reparation for Slave and Forced Laborers in World War Ii and the Ensuing Humanitarian Rights Implications: a Case Study of the Icj's Recent Decision in Jurisdictional Immunities of the State (ger. v. It.: Greece Intervening)

• Publication year: 2013
• Citation: Vol. 41 No. 3

DENYING REPARATION FOR SLAVE AND FORCED LABORERS IN WORLD WAR II AND THE ENSUING HUMANITARIAN RIGHTS IMPLICATIONS: A CASE STUDY OF THE ICJ'S RECENT DECISION IN JURISDICTIONAL IMMUNITIES OF THE STATE (GER. V. IT.: GREECE INTERVENING)

Morgan Lynn Klinzing^*

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Table of Contents

I. Introduction...............................................................................777

II. Historical Background............................................................778

A. Early Restitution.......................................................................779
B. Litigation of Forced Labor Claims..........................................781
C. The German Foundation 'Remembrance, Responsibility, and the Future'.........................................................................784
D. Previous Developments and Cases in Italy and Greece...........786

III. Case Analysis..............................................................................788

A. Greek Judgments Enforced in Italy..........................................789
B. Italy's Arguments and the ICJ's Decisions..............................790

I. Italy's Arguments Against Granting Germany Sovereign Immunity for Civil Claims Brought in Italy......791
2. Italy's Arguments Against Germany's Sovereign Immunity in Satisfying a Judgment from a Foreign State...................................................................................793
3. Italy's Arguments in Favor of the Enforceability of Greece's Judgments in Italy..............................................793

C. Dissents....................................................................................794

IV. Analysis and Case Implications..............................................796

A. Germany's Insufficient and Incompetent Reparations and Foundation...............................................................................796
B. The ICJ's Failure to Recognize an Emerging Trend of Restrictive Immunity Leaves Victims with No Reliable Reparations..............................................................................797

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C. Because of the ICJ's Ruling, the FSIA May Be in Jeopardy and the United States Should Take the Lead in Protecting Victims of Human Rights Violations........................................799

V. Conclusion...................................................................................801

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I. Introduction

In August 1944, twenty-two year old Martha Klein was seized by German troops in Hungary and forced to move to Austria where she was taken by train to Ravensbruck, a notorious women's concentration camp.¹ She was forced to live "in a wooden barracks [without] light, heat, insulation from rain, running water, or sewage facilities."² Two thousand five hundred women were expected to share one latrine and one washroom.³ Martha had to sleep with three other women in wooden bunks stacked three tiers high.⁴ The women were only provided with a "bowl of watery potato-skin and grass soup each day and a slice of bread twice a week."⁵ After waking up at 4:00 a.m., Martha was expected to stand at attention for roll call for hours before being shipped off to Siemens' Ravensbruck factory for heavy labor, manufacturing electronics and communications equipment for the German Reich.⁶

The German government refused any compensation or reparation for Martha and thousands of other surviving forced and slave laborers after World War II.⁷ Over forty years later, Martha brought suit in federal court in New Jersey. Unfortunately, the judge dismissed her claim because of international policy implications the judge deemed out of his purview.⁸

Martha's story is not unusual. Thousands of surviving slave and forced laborers from many countries had similar experiences.⁹ Should forced laborers for private German companies be compensated for their labor in light of the gross human rights violations they suffered? The International Court of Justice (ICJ) recently decided a case examining this issue.¹⁰

On February 3, 2012, the ICJ published its much anticipated opinion regarding jurisdictional immunity¹¹ from claims of severe human rights

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violations arising during World War II between September 1943 and May 1945.¹² The court ruled for Germany, finding that (1) civil claims could not be brought in Italy against Germany for war crimes committed by the German army against Italian nationals, (2) Italy was not allowed to confiscate a German-owned building located in Italy, and used for non-commercial purposes, to satisfy a default judgment in an Italian court against Germany, and (3) judgments obtained in Greece against Germany were not enforceable in Italian courts.¹³ This Note examines this decision and its implications.

First, this Note will address the historical background of restitution to victims after World War II, including previous international human rights cases in Italy regarding jurisdictional immunity. Second, this note will explain this specific case, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), and will summarize the ICJ's findings. The last section will analyze the potential effect of this ruling on future armed conflicts and examine whether damages imposed sixty years after the fact are an effective deterrent against future use of forced labor during armed conflicts. This section will also analyze the limitations of this ruling and the dangers of allowing the ICJ to determine the scope of jurisdictional immunity rather than an international governing body, such as the United Nations (UN).

II. Historical Background

Italy joined World War II in June 1940 on the side of Germany but surrendered to the Allies and declared war on Germany in September 1943, when Mussolini was removed from power.¹⁴ Much of Italy was still occupied by German forces, which massacred and deported many Italian civilians.¹⁵ Germany also took many Italian forces captive, used them as forced labor, and denied them prisoner of war status that would have allowed them to receive compensation.¹⁶ During the war, Germany used approximately 10 million forced laborers in practically every aspect of society, from schools and hospitals to industry and the Schutzstaffel (Germany's version of the Secret Service; also known as the "S.S.").¹⁷

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A. Early Restitution

While the world initially confronted Germany's crimes against humanity in the Nuremburg Trials of 1945, these trials focused on punishing criminal behavior and not on providing restitution to victims of forced labor and concentration camps.¹⁸ A discussion about compensation for victims was first initiated by Konrad Adenauer, the first Chancellor of the Federal Republic of Germany (West Germany) in 1949.¹⁹ The first compensation payment was offered to Israel in 1949: Deutsche Mark 10 Million "as a first direct token that the injustice done to the Jews all over the world has to be made good."²⁰ The following year, the Luxembourg Agreements arranged for West Germany to pay approximately DM 100B to 500,000 Israeli Holocaust survivors internationally.²¹ While these payments were unprecedented, many victims were left with nothing because West Germany would not pay victims in Communist countries.²² These agreements also ignored forced or slave laborers because they were deemed to be reparations under international law and thus were not to be dealt with until after Germany was unified so the country would have an opportunity to recover economically.²³

Germany became a party to many statutory agreements and treaties addressing claims by victims of human rights violations.²⁴ German property was originally seized, but this seizure was terminated in 1946.²⁵ However, the Agreement Respecting Distribution of German Reparation: Establishment of Inter-Allied Reparation Agency and Restitution of Monetary Gold still obligated Germany to make reparations for Nazi persecution with the amount dependent on Germany's ability to pay.²⁶ The 1953 Agreement on German External Debts (the London Agreement) delayed discussion of these reparations, tolling claims until a final peace treaty was concluded.²⁷ The London Agreement was vague on whether

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"reparations" by private parties were to be included.²⁸ In 1953, West Germany initiated a discussion of reparations for individuals and authorized payments to persecuted people under the Federal Compensation Law Concerning Victims of National Socialist Persecution (Bundesentschädigungsgesetz (BEG)).²⁹ However, this law did not include forced laborers in part because many were not considered victims of National Socialist persecution.³⁰ Many forced laborers were also denied compensation because they lacked the necessary territorial link to Germany.³¹

Germany's unification in 1989 revived the potential for reparations for previously uncompensated forced laborers.³² Lawsuits by private parties against Germany proliferated after a German trial court held on November 5, 1997 that the limitations period for forced labor cases was indeed tolled³³ by the London Agreement until after Germany was unified.³⁴ However, these claims were no longer tolled after the Two Plus Four Treaty³⁵ became effective on March 15, 1991.³⁶ The "Two Plus Four Treaty" fashioned German unification by providing a legal foundation and was viewed as a de facto peace treaty.³⁷ Moreover, the German Constitutional Court provided dicta from a ruling on May 13, 1996 indicating that, while public reparations for forced labor were barred, private parties could still assert claims for compensation.³⁸ Thus, a flood of litigation ensued as people who had not been given official compensation and were not afforded the ability to file

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claims under German law were now filing claims, both in Germany and around the world.

B. Litigation of Forced Labor Claims

Former forced laborers saw an opportunity after the German Constitutional Court implied that individual compensation claims for forced...