Disappointed by Law:

How Intertemporal International Law continues to

Limit Compensation for German War Crimes in
Greece

Stefan Kirchner

The texts in this document have been published online at rladi.com in 2014 and 2015.
They are combined here for the first time and made available free of charge at scribd.com.

Greek War Crimes Compensation Claims: Intertemporal International Law and

Conceptions of Justice
In the current debate on Greeks economic situation, Greece has brought up the issue of
compensation for German war crimes in Greece committed during World War II. In
particular the murder of civilians in Distomo has been referred to in this context. This case
has been before courts in Germany and Greece as well as at the European Court of
Human Rights. The latter found in favor of Germany, as did the International Court of
Justice in a case between Italy and Germany.

If we ignore the London Agreement on German External Debt as a particular rule relating
to Germany and look at the issue from a more general perspective, a key issue is the
concept of intertemporal international law. Today, victims of such crimes can claim
compensation e.g. under Article 41 of the European Convention on Human Rights or
Article 75 of the Rome Statute which established the International Criminal Court but
international law operates on the premise of intertemporal international law. This means
that international law applies as it was at the time in question. This explains why, although
conquest of territory is not accepted by international law as a means of acquiring title to
territory, many contemporary borders which were established through the use of force
continue to be recognized today. As a general rule, international law is not retroactive.
While breaching the rule of intertemporal international law is not absolutely unheard of (as
is evidence by the abandonment of the concept of terra nullius in the Australian case of
Mabo v. Queensland (No. 2)), such breaches are not complete. After all, the native
population in Australia did not get back full sovereignty over its territory after Mabo. Legal
certainty is a powerful barrier which protects the concept of intertemporal international
law. Together with the concept of state sovereignty and the rule of par in parem non habet
imperium as seen in the aforementioned ICJ judgment, this concept protects Germany
against Greeces compensation claim. But of course it is hardly ethical from German
governments to refuse to provide compensation for wartime damages to civilians, let
alone such atrocious crimes as the murder. While the London Agreement was meant to
take into account Germanys economic situation after World War II, the situation has
changed fundamentally. Also, in Afghanistan German forces have compensated locals
who suered e.g. property damage due to operations by the German armed forces there,
similar to solatia payments made voluntarily by US forces in the context of operation
Enduring Freedom.Even if Germanys government would not want to accept any legal
obligation to do so, it should at least consider compensating victims of World War II who
have not been compensated under earlier compensation schemes. While intertemporal
international law can lead to results which are perceived as unjust, it also provides for
legal certainty. The international community as the maker of international law has thus
decided in favor of legal certainty as a fundament of long-term justice instead of aiming
for more specific justice.

Litigation for Compensation for Violations of International Humanitarian Law

In the last post I had mentioned the renewed claims by the Greek government for
compensation for German war crimes during World War II. Intertemporal international law
limits compensation claims to more modern conflicts but there is still the question
whether International Humanitarian Law actually provides for compensation for violations
of the ius in bello. Under the old Geneva rules there is a compensation claus but it is
limited to inter-state claims and hardly if ever used. To date it seems doubtful if there is a
rule of customary international law providing for individual compensation claims. This
makes norms such as Article 41 ECHR and Article 75 Rome Statute only more important
as well as states willingness to take responsibility. In the long run, though, a global
regime will be indispensable in order to improve the enforcement of International
Humanitarian Law beyond International Criminal Law by adding a truly eective tort
regime to the rules applying to armed conflicts.

The Distomo Case in German and Greek Courts and at the European Court of
Human Rights
In recent months there has been a lot of talk about Greece demanding compensation
from Germany in relation to violations of international law during World War II. These acts
include not only but also massacres against the civilian population. The German
occupation of Greece during World War II is an often forgotten part of 20th century history
and many young Germans might never have heard of it had it not been for a number of
court cases which made it into mainstream news in the last years. These cases
concerned the massacre committed by Germans in the village of Distomo in 1944 in
which more than 200 civilians were murdered. (see e.g. S. Kirchner, Vlkerrechtliche
Immunitten und die Frage der Entschdigung fr Verletzungen des Humanitren
Vlkerrechts im Kontext des Globalisierungsdiskurses (2011), p. 15). A lawsuit brought by
relatives of the victims of this massacre was dismissed by German courts (Landgericht
Bonn, Case no. 1 O 358/95, Judgment of 23 June 1997; Oberlandesgericht Cologne,
Case no. 7 U 167/97, Judgment of 27 August 1998; Bundesgerichtshof BGHZ 155, 279)
while Greek courts on the other hand accepted compensation claims (for example the
District Court Livadeia, Case no. 137/197, Judgment of 25 September 1997). However,
the European Court of Human Rights (Application no. 59021/00) upheld the principle of
sovereign immunity for war crimes committed during World War II, as did the International
Court of Justice in a similar case between Italy and Germany which I had mentioned in
my last post earlier today. Rather than paying compensation ex gratia, that is, without
recognizing a legal obligation to do so, Germany essentially was able to hide behind old
rules, which only applied due to the concept of intertermporal international law, and was
able to avoid paying compensation. An ex gratia payment would not have damaged the
integrity of international law and although Greece does not have a legal claim to
compensation, a true commitment to human rights would certainly have looked dierent.

Compensation for World War II War Crimes and Intertemporal International Law
While today massacres are not only outlawed and punishable under international law, the
situation becomes significantly more dicult when we look at the issue of compensation.
Today victims of human rights violations are to be compensated, e.g. under Article 41 of
the European Convention on Human Rights. In some cases, contemporary actions by
states can amount to perpetuations of old human rights violations and thereby to new
human rights violations which are covered by todays laws. (see S. Kirchner / K. GelerNoch, Compensation under the European Convention on Human Rights for
Expropriations enforced prior to the Applicability of the Convention, in: 19 Jurisprudencija
/ Jurisprudence (2012), pp. 21-29) In general, though, this does not cover cases which
like the Greek cases date back to a time when there was no such obligation to
compensate. The International Court of Justice in a similar case between Italy and
Germany has upheld the principle of state immunity and I have written about this case
earlier (S. Kirchner, Compensation and Immunity: Germany v. Italy before the ICJ, in:
Jurist Forum, 9 January 2009, http://jurist.org/forum/2009/01/compensation-andimmunity-germany-v.php.). Today, international law no longer accepts the idea that the
state is legally immune when it comes to human rights violations. But at the time these
crimes were committed that was the law. And it is this old law which is to be applied due
to the concept of intertemporal international law. According to this rule, the law is to be
applied which existed at the time in question. This is also why borders are not redrawn
today even if land was conquered by force at a time before international law outlawed
conquest as a way to acquire title to territory.

There should be an obligation to compensate victims of violations of human rights or

international humanitarian law but de facto most payments made by states to victims or
their relatives are only made ex gratia, i.e., without accepting any legal obligation. This
prevents the emergence of a rule of customary law, in particular when it comes to armed
conflicts. (on the issue of compensation for violations of the laws of war see E.-C. Gillard,
Reparation for violations of international humaniarian law, 85 International Review of the
Red Cross (2003), pp. 529-553 and Vlkerrechtliche Immunitten und die Frage der
Entschdigung fr Verletzungen des Humanitren Vlkerrechts im Kontext des
Globalisierungsdiskurses (2011), ISBN: 978-3656017615)

The law as it is today is insucient when it comes to compensating for past war crimes
but the concept of intertemporal international law is important due to the certainty it
provides. International law needs this certainty. But assuming that the idea of
intertemporal international law is to be maintained in the interest of legal certainty, at the
very least, though, states should live up their moral obligation and provide compensation
to victims of past injustices.