Germany - Sacrosanct

THE HAGUE/BERLIN |

THE HAGUE/BERLIN (Own report) - Accompanied by protests, the International Court of Justice in The Hague will deliberate, this week, on Germany's plea for immunity against demands for reparations posed by victims of the Nazis. The supreme courts of Greece and Italy have ruled that, as the legal successor of the Nazi-Reich, Germany has to pay reparations in cases of grave Nazi war crimes. Previous attempts to have Germany accept a negotiated settlement have failed. With the present legal battle in The Hague, Berlin, pleading an alleged "state immunity," is now seeking to muzzle the victims. Nazi massacres of hundreds of civilians, which have already led to convictions of German war criminals in the Subsequent Nuremberg Trials, are at the center of this legal debate in The Hague. These massacres were without consequences in the Federal Republic of Germany - the victims never received reparations, the criminals were never punished. The jurist Martin Klingner told foreign-policy.com that throughout this legal battle international courts have developed strange interpretations of the law. Klingner is representing the relatives of the victims before this court.

Today, the International Court of Justice in The Hague is opening hearings on Germany's plea of "state immunity," with which it is seeking to avoid paying reparations to the relatives of the victims of Nazi war crimes. The hearing will focus on the massacre, committed June 10, 1944, by German SS troops in the Greek village of Distomo. The SS killed 218 civilians, including children and babies. The trial in The Hague is the culminating point of a legal battle that has lasted more than 15 years.

Refused

Relatives of Greek Nazi victims have been trying since the 1990s to have their reparation demands met through legal action. Previous attempts to have Germany accept a negotiated settlement had failed.[1] The relatives have adopted a two-fold legal action: one in Greece, the other in Germany, for the case that Germany does not recognize Greek court rulings. In Mai 2000, the Supreme Court in Athens, the Areopag, ruled that in the Distomo case alone, the Federal Republic of Germany has to pay 28 Mio Euros in reparations (plus interests). Berlin refused and the Greek government prevented the foreclosure on German state property on Greek territory. In Italy, there is a similar case. The Berlusconi government had prevented the foreclosure against German property in Italy, ruled admissible by the Italian Supreme Court - the Court of Cassation, in Rome -in June 2008. The German judiciary has refused to admit lawsuits of the victims' relatives in Germany. The European Court of Human Rights has recently ruled in favor of Germany's position.

Clearly Murder

The current case before the International Court of Justice in The Hague could become the final episode of a legal battle. On December 23, 2003, Berlin filed a complaint against Italy with the objective of thwarting all future reparation procedures in other countries. The Federal Government is invoking an alleged "state immunity," claiming that private persons cannot take legal action against sovereign actions of foreign states. This constitutes not only an affront to the highest courts of several EU member states, by declaring their rulings are violations of international law. Berlin is also showing its intentions of becoming sacrosanct vis à vis foreign victims of the Nazis. This is essentially about murder, whose unjust nature has again become indisputable. As far as the Distomo massacre is concerned, the Nuremberg Military Tribunal, in its ruling on February 19, 1948, had already declared that "this has also been clear calculated murder."[2] Even West German courts have adopted this position in principle, after the massacre had been characterized for a period of time as an admissible measure of retaliation. Nevertheless, the German government is still insisting on "immunity."

Merely Platitudes

Last January, the German foreign minister reacted with indignation when he learned that the Greek state had joined the legal action before the International Court of Justice. This, according to observers, is in reaction to the mounting pressure from the Greek population, demanding that its government no longer accept Germany's refusal to pay reparations and cease supporting Germany, by refusing foreclosure on German property. When Foreign Minister Westerwelle learned that the Athens government joined the legal action in The Hague, he remarked that he had "no sympathy." In Germany, we are aware of "our responsibility toward our history," we are also "aware of the special suffering of the Greek population in WWII."[3] But Westerwelle did not elaborate on why it would be inadequate to demand action as a consequence of that "awareness" and "responsibility."

Curiosities

The lawyer Martin Klingner, who is representing relatives of Greek Nazi victims in court, told german-foreign-policy.com that international courts have developed some strange interpretations of the law in these legal battles. For example, it is not clear why the International Court of Justice in The Hague has accepted Germany's suit against Italy, in the first place, because disputes between EU member states fall within the jurisdiction of the European Court in Luxemburg. It is also "questionable, to say the least," whether "lawsuits between states can override legal claims of private persons." Complicating matters even more, is the fact that the lawsuit against Italy is supposed to force Italy to impose limits on its justice system - in violation of judicial impartiality. Klingner also points out that the European Court of Human Rights, whose intervention his client has sought, has declared in a decision "it will not intervene," if "German national jurisdiction rules on the validity of compensation claims."[4] Klingner recalls that the task of that court is precisely to verify whether the respective rulings in national courts are appropriate or not. Fundamentally, this also applies to German court decisions.

Unpunished

Klingner also recalls that the relatives of the Distomo victims have yet to receive reparations. Even those, who committed the crimes, have gone unpunished. The only ones to have been prosecuted, explains Klingner, were the commanders in chief of the Wehrmacht in Greece, "who were prosecuted in Nuremberg already in 1948."[5] On the other hand, of the remaining German war criminals responsible for the massacre in Greece, "not a single one was punished" by West German justice. In cases, where the war criminals were sentenced by foreign courts, West Germany has also prevented the sentences from being enforced. Just recently, German officials have confirmed that German war criminals, who, in July, had been condemned for a massacre of civilians in Italy, need not fear the consequences. The Federal Republic of Germany does not extradite its citizens, even if they are responsible for a massacre.[6]

Protests

Actions in protest of the German refusal to pay reparations have been announced. Last week, activists from Germany had occupied for an hour the Goethe Institute's Thessaloniki branch office. All Nazi victims must unconditionally be given reparations, was the activists' demand. For today, Monday, a rally has been scheduled in front of the International Court of Justice in The Hague. The appeal, calling for the rally, states that for Nazi war crimes, state immunity is out of the question. If the German government is successful in The Hague, all hope of future reparations for victims of Nazi barbarism will be quashed.

[1] s. dazu Ein immuner Staat und Totalabwehr
[2] Antrag auf Verweisung an die Große Kammer; www.nadir.org/nadir/initiativ/ak-distomo/
[3] Bundesminister Westerwelle zum griechischen Beitritt zum IGH-Verfahren Deutschlands und Italiens; www.auswaertiges-amt.de 13.01.2011
[4], [5] s. dazu Eine hässliche Bilanz
[6] Lebenslang für neun Ex-Wehrmachtssoldaten; www.tagesschau.de 07.07.2011