Individual Compensatory Claims for WWII Atrocities in the Final Report of the Hellenic Parliamentary Committee on Reparations: Anything New Under the Sun? Part II

by Dimitrios Kourtis

[Dimitrios Kourtis is a PhD cand. at the Aristotle University of Thessaloniki, Greece and former national expert to the Hellenic Parliamentary Committee on WWII Reparations. This is the second part of a two-part posting. The first part can be found here.] 

Having completed a preliminary debate on the FR’s arguments regarding ICCs [Part I], in this second part we examine the legal validity of the Parliamentary Committee’s proposals concerning the vindication of ICCs against Germany for atrocities committed during Greece’s WWII Occupation. Afterwards, we refer briefly to the controversial issue of statutory limitations and conclude with an overall assessment of the Committee’s work vis-à-vis ICCs.

The Judicial Remedies’ Dead-End

Despite its noteworthy contributions, the FR remains highly inconclusive regarding more practical matters, such as the appropriate judicial forum for the adjudication of ICCs. Firstly, it makes reference [p. 81] to the possibility of bringing such claims before the Arbitral Tribunal envisaged by Article 28 of the 1953 London Agreement on German External Debts. However, this argument fails to understand that such claims fall outside the subject matter of the London Agreement, as provided by Article 5(2), excluding ‘claims arising out of the WWII by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich and agencies of the Reich’.

Secondly, the FR [pp. 81-82] examines the possibility of instituting proceedings before the ICJ. We must observe that the FR remains silent to the obvious precondition, namely that such an option can only be considered possible if (and if only) the Hellenic Republic espouses the ICCs through diplomatic protection, which remains a highly improbable choice. Even so, the FR rightly concludes that the temporal clauses attached to the declarations of both Greece and Germany pursuant to Article 36(2) of the ICJ’s Statute regarding the acceptance of the ICJ’s compulsory jurisdiction would certainly bar the World Court from hearing the merits of such a case. It is a mere truism that the ICJ’s power to administer justice is limited ratione temporis to acts and omissions creating the dispute in question that took place subsequent to the conclusion of the international instrument forming the basis of the Court’s jurisdiction. Both the PCIJ’s doctrine in the Phosphates in Morocco Case (1938) and the ICJ’s preliminary ruling in the Certain Property Case (2005) support the exclusion of the World Court’s jurisdiction vis-à-vis the Greco-German ICCs.

Furthermore, these findings endorse our previous hypothesis, according to which the FR’s authors suggested that the adoption of the Italian Constitutional Court’s line of thinking remains the only viable solution for the safeguarding of the interested individuals’ right to an effective remedy and the adjudication of their claims’ merits. To that aim, the Committee supported the abolition of the judicial stamp fee (8‰ of the claim’s monetary value) for all civil actions concerning ICCs against the former WWII Occupying Powers seeking declaratory relief (i.e. the judicial recognition of the legal existence and the precise amount of the claim), submitting a draft amendment.

The controversial issue of statutory limitations

The FR [p. 83] also suggests the adoption of a norm regarding the inalienable nature of both the criminal action and the civil claims arising from WWII atrocities through the ratification of either the 1968 UN Convention or the 1974 European Convention. It is important to highlight that in the past certain local prosecutors have declined to investigate criminal complaints against alleged war criminals considering the offences nullified due to the lapse of the 20-years limitation period prescribed for common felonies by Article 111(2) of the Hellenic Criminal Code. This is a highly disturbing development, since according to the lex fori, not distinguishing between international and domestic delicts, tort claims are also subject either to an exclusive 5-years limitation period, or –if the tort is also a criminal offence– to the limitation period prescribed by the penal legislation, which is usually much longer.

Some Conclusive Remarks

Eventually, the said fee was abolished for all relevant declaratory remedies with just a brief and quite vague reference to the Committee’s contribution in the explanatory memorandum of the repealing Law 4446/2016, while the issue of statutory limitations is still pending, despite a non-binding policy declaration of the governing coalition’s MPs (see here for an unofficial translation) supporting the inalienability of such claims. Given these developments, serious doubts can be expressed regarding the possibility of domestic courts getting the hint and adapting their jurisprudence to the Italian Constitutional Court’s line of argumentation. This option seems fairly unlikely given that –until something actually changes in the international juridical arena– the Margellos judgment will retain its erga omnes binding force (see here for the opinion of the Hellenic Government).

Ultimately, whether the Hellenic judicial authorities will produce something of a Sentenza 238/2014 à la greca remains to be seen. What we can admit, even prior to the judicial scrutiny of the FR’s proposed course of action, is that the report –however commendable in its aims and arguments– fails to spill out the simple, yet solid in terms of law, truth — namely that (unless something really changes in the international or municipal jurisprudence) no international or domestic tribunal will adjudicate such ICCs, based solely on the authority of a parliamentary organ and its legally non-binding suggestions.

[Author’s Note]

The ideas expressed in this post are not to be attributed, linked or otherwise associated with the Parliamentary Committee or any other public authority.

http://opiniojuris.org/2018/03/21/individual-compensatory-claims-for-wwii-atrocities-in-the-final-report-of-the-hellenic-parliamentary-committee-on-reparations-anything-new-under-the-sun-part-ii/

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