From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 09 May 2021
- Freedom from slavery or forced labour — Right to property — Prisoners of war — Compensation
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
A. Background of the Programme
1 More than 55 years after the end of World War II, the German Forced Labour Compensation Programme was initiated with a view to granting at least some financial compensation to the victims of injustice committed during the period of the Nazi regime, in particular, by forced labour (see also Compensation for Personal Damages Suffered during World War II; Forced Labour/Slave Labour). The German legislator adopted the Gesetz zur Errichtung einer Stiftung ‘Erinnerung, Verantwortung und Zukunft’ (Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’ [‘German Foundation Law’]) in summer 2000, which entered into force on 12 August 2000. The task of the Stiftung ‘Erinnerung, Verantwortung Zukunft’ (Foundation ‘Remembrance, Responsibility and Future’ [‘Foundation’]) was, first, to process payments to victims of Nazi injustice all over the world, and second to finance projects, in particular, with a view to promoting, inter alia, the interests of survivors of the National Socialist regime and the understanding between peoples. This step had been preceded by protracted international negotiations involving the governments of Germany and the most important States which had been invaded by German troops during World War II or fought against Germany as well as victims’ lawyers and organizations.
2 The establishment of a compensation programme had been encouraged decisively by three main factors: the compensation gap regarding forced labour, the fall of the Iron Curtain, and lawsuits in the United States of America and Germany against German companies and the German State.
3 First, the compensation gap had arisen since forced labour had never formed a criterion for compensation in former programmes, neither in German compensation legislation nor in hardship funds or lump sum agreements. In particular, the criteria under Sec. 1 Bundesgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung (Federal Law for the Compensation of the Victims of National Socialist Persecution [‘Federal Compensation Law’]) were restricted to cases of persecution because of political, racial, religious, or conscience related reasons. This did not include forced labourers from Central and Eastern European countries since—according to the Western German understanding of the Federal Compensation Law—they were not persecuted for racial reasons but for reasons of their nationality. These victims could only obtain some compensation under narrow preconditions if they had suffered a lasting bodily injury (Art. VI No 1 (1) Zweites Gesetz zur Änderung des Bundesentschädigungsgesetzes [Final Federal Compensation Law]). Regarding payments by the former employers, only certain companies had paid out some compensation to ‘their’ former forced labourers. In the context of these particular payment programmes by individual companies, the individual amounts varied greatly from one programme to another. This provided an incentive to seek more equality in payments awarded to former forced labourers.
4 Second, the fall of the Iron Curtain had removed the political obstacle for compensation payments to individuals in the States of the communist bloc. Victims of Nazi injustice residing in the Central and Eastern European States had formerly been excluded to a large extent from compensation programmes. Compensation efforts initiated after the historical changes either did not specifically address forced labour (hardship payments to Jewish Nazi victims in Eastern Europe provided for in the context of the 1990 Treaty on the Establishment of German Unity, so-called Art. 2—Fund under Art. 2 Einigungsvertrag [Additional Agreement to the Treaty on Unification]) or did not provide for significant individual awards (lump sum payments to Poland, Russia, Ukraine, and Belarus).
5 Third, a wave of lawsuits had been initiated in German courts and, more importantly, US courts against German companies which had been involved in one way or another in human rights abuses and exploitation during the Nazi period. These lawsuits may explain the motivation of companies to settle cases and to obtain in return a certain protection against future proceedings. It also became evident that protracted legal proceedings with unpredictable results could not suffice to meet the moral and political responsibilities, not least bearing in mind the advanced age of the victims. As a consequence, the Stiftungsinitiative der deutschen Wirtschaft (German Economy Foundation Initiative Steering Group; ‘Foundation Initiative’) was created, a loose association of those leading German companies which had been involved in forced labour.
6 This situation was addressed by the new German government after the 1998 elections. After protracted negotiations with relevant governments as well as victims’ lawyers and victims’ organizations, the overall amount of money to be inserted into a foundation, the basic features of a law creating the respective foundation, and a plan of allocation were agreed on and set out in Annex A Agreement between the Government of the United States of America and the Government of the Federal Republic of Germany concerning the Foundation ‘Remembrance, Responsibility and the Future’ (‘Government Agreement’). The Government Agreement also fixes an obligation on the US government to support legal peace for Germany and German companies. The basic principles of the Foundation were endorsed in a joint statement by the governments of certain Central and Eastern European States (Belarus, Czech Republic, Poland, Russian Federation, Ukraine), Israel, Germany, and the US, as well as the Foundation Initiative, a Jewish victims’ organization and a number of victims’ attorneys (Joint Statement on the occasion of the final plenary meeting concluding international talks on the preparation of the Foundation ‘Remembrance, Responsibility and the Future’ [‘Joint Statement’]). Moreover, the governments of the participating Central and Eastern European States and Israel undertook to contribute the necessary measures in their national legal systems to achieve ‘all-embracing and enduring legal peace’ (Joint Statement No 4 c). And the victims’ lawyers agreed to file motions to dismiss pending lawsuits in US courts (Joint Statement No 4 g).
7 On one hand, in the negotiations on a payment programme as well as in the final agreements and the German law adopted, the German side avoided the acknowledgement of any legal obligation of the German State to pay compensation. On the other, the programme was agreed on in a situation of growing legal uncertainty on the scope of State responsibility for providing compensation to individual victims. The grounds for shielding States from being sued for compensation both regarding the question of an individual right to compensation and the question of State immunity had started to become shaky. This pertained, in particular, but was not limited to the courts’ practice in the US regarding violations of rights such as those addressed under the programme.
8 The solution to the pending problems by establishing a payment programme is characterized by three elements: it was based on a mass claims approach, which favours expediency over detailed individual justice; it was intended as a gesture of reconciliation towards those victims who were still alive when the foundation idea was agreed on; and it sought to provide legal closure for the German State and German companies in order to protect them against further lawsuits.
9 The Foundation was funded by the German State and the Foundation Initiative with 5 billion Deutsche Marks (‘DM’; about €2.56 billion) paid by each of the founders; the Foundation Initiative also agreed to pay at least another DM100 million (about €51.13 million) earned as interest thereon. The full amount of the Foundation’s capital was assigned for specified purposes. All monies went into the payment programme except the following positions: DM700 million (about €357.9 million) were allocated to the so-called ‘Future Fund’ for financing projects; another DM200 million (about €102 million) were reserved for the administration of the German Foundation responsible for organizing the basic features of the payment programme as well as the costs incurred by the American and German lawyers who had contributed in one way or another to the establishment of the Foundation.
10 Specified overall amounts were assigned for specific damages (Sec. 9 German Foundation Law). The largest amount—DM8.1 billion (about €4.14 billion)—was allocated to seven partner organizations through which the payments for forced labour and other comparable Nazi injustices were processed and disbursed to eligible applicants. Apart from these monies a sum of DM50 million (about €25.56 million) was set aside for other personal injuries suffered, in particular, by victims of medical experiments and of children’s homes. Another DM1.05 billion (about €514 million) was reserved for property damage directly caused by the involvement of German companies as well as for certain humanitarian purposes.
1. Forced Labour and Comparable Injuries
11 Three main categories involving forced labour were provided for (Sec. 11 (1) sentence 1 No 1, 2 and sentence 2 German Foundation Law). The first category included detention in a concentration camp, a ghetto, or another place of confinement characterized by inhuman conditions of detention, insufficient nutrition, and lack of medical care; the second category addressed former forced labourers who were deported from their home country, kept in detention, detention-like, or comparably harsh living conditions and forced to work, except in agriculture, which was considered a less harsh situation of forced labour; and the third category provided for payments for ‘other National Socialist injustice’ including, for instance, forced labour in agriculture. The law defines certain maximum amounts for each of these categories (first category: up to DM15,000 [about €7670], other categories up to DM5000 [about €2556]). Former payments received by victims on the part of German companies had to be deducted before the final award was made (Sec. 15 (2) German Foundation Law); in contrast to that, no payments from public sources were deducted.
12 Prisoners of war, in principle, were not eligible for payment: ‘Eligibility cannot be based on prisoner-of-war status’ (Sec. 11 (3) German Foundation Law). The wording shows that a prisoner of war status did not lead to a comprehensive exclusion. The intention was to include such persons who had been prisoners of war for some time but who had then carried out forced labour as civilians (see explanation on Sec. 11 (3) Entwurf eines Gesetzes zur Errichtung einer Stiftung ‘Erinnerung, Verantwortung und Zukunft’ [Draft of the German Foundation Law]). This situation particularly applied to Polish prisoners of war detained at the beginning of the war and then ‘released’ into a civilian status and forced to work under that status. The open wording of the German Foundation Law furthermore allowed for awarding payments to former prisoners of war for situations in which their status was completely irrelevant due to treatment motivated by racist Nazi ideology. Therefore, applicants who had been detained in one of the concentration camps were eligible for payment irrespective of the eventual legal status.
2. Other Personal Injuries
13 Primarily, victims of medical experiments or of children’s homes, ie parents who had lost a child in such a home or survivors of such homes, were eligible for payments. Conceptually, this provision also allowed for payments for severe health damage caused by Nazi injustice. However, no payments were awarded for health damages not covered by one of the priority groups mentioned above. The overall amount of DM50 million (€25.56 million) reserved for ‘other personal injuries’ proved to be very limited and did not allow for paying the maximum award of DM15,000 (about €7670) even to the primary categories of eligible applicants. By using interest earned on the Foundation’s capital, individual payments reached DM 8300 (about €4244), later on complemented by an additional payment of €2450.
3. Property Damage
14 In a very complex provision, the criteria for compensation of property damage were set out (Sec. 11 (1) sentence 1 No 3 and sentence 4 German Foundation Law). These criteria mainly drew on two factors: a) the complementary purpose of this provision was expressed by reserving payments under this law to those cases which did not qualify for other programmes for compensation of property damage; b) payments were limited to instances of property damage directly caused by involvement of German companies. Thereby, the great majority of property damage caused by Nazi Germany remained outside the scope of the law. Two ceilings were established for persecution-related damages (DM150 million, about €76.69 million) and for non-persecution-related damages (DM50 million, about €25.56 million). No maximum sum was set out for individual payments for property damages.
15 Another ceiling was designated for payments concerning claims against German insurance companies (DM200 million, about €102 million). This money was administered and distributed by the International Commission on Holocaust Era Insurance Claims, a body which had been founded as a Swiss association in 1998 by the US insurance supervisory authorities, Jewish organizations, the State of Israel, and some European insurance companies. The German Foundation Law did not specify any criteria for eligibility under this part of the programme. Moreover, the International Commission on Holocaust Era Insurance Claims was accorded DM350 million (about €178.95 million) for humanitarian purposes.
16 Finally, additional sums were set out for humanitarian projects: DM276 million (about €141.12 million) were accorded to the Conference on Jewish Material Claims Against Germany for the benefit of holocaust survivors and DM24 million (about €12.27 million) for the benefit of Sinti and Roma who had been persecuted by the Nazi regime.
17 Applications had to be submitted until the end of 2001 (Sec. 14 (1) German Foundation Law as amended on 4 August 2001); if the victim died after 15 February 1999 as well as in all cases of property claims, certain close relatives or an heir entitled by a will were eligible (Sec. 13 (1) German Foundation Law). Payments were processed in two instalments; thereby providing an option for cutting some or all of the second instalment in case the monies provided proved insufficient to allow for a full payment to all eligible applicants. In practice this option was only used for payments for ‘other personal injuries’. All payments which had not been processed by 30 September 2006 were forfeited; exceptions to this rule were possible only until 31 December 2006. Monies which had been assigned for compensatory payments but could not be paid out were used for humanitarian projects for the benefit of former victims of Nazi injustice as well as documentation of forced labour and research on the work of the Foundation. Amounts which could not be paid out were rather small as compared to the overall sums; in particular, only 0.68% of the monies available for forced labour and comparable injuries could not be paid out at the end of the programme.
18 Applications concerning forced labour and comparable injuries as well as other personal injuries were processed by seven partner organizations. Such partner organizations were foreseen by the law for Poland, Ukraine (also responsible for Moldova), the Russian Federation (also responsible for Latvia and Lithuania), Belarus (also responsible for Estonia), the Czech Republic, and for Jewish (Conference on Jewish Material Claims Against Germany) and non-Jewish (International Organization for Migration [IOM]) applicants from the rest of the world. Ukraine, Russia, and Belarus shared the responsibility for the former republics of the USSR which are not explicitly mentioned above. The responsibility was determined by the place of living on 16 February 1999. Each partner organization was assigned a specific sum as a maximum amount (ceiling); this means that a partner organization was limited to spending this amount for all eligible applicants within its regional responsibility. If this ceiling did not cover paying the full award to every eligible applicant, the final award had to be cut. In practice, this provision was only applied to the category of other personal injuries.
19 The actual amount being paid mainly depended on whether partner organizations used the possibility to establish subcategories. In practice, only very broad subcategories were established instead of differentiated criteria reflecting the individual suffering. Most importantly, some partner organizations decided to establish a category for legal successors of the original victim. That meant that a reduced amount was paid if the amount awarded to the victim did not reach the addressee before his or her death. By doing so, partner organizations managed to pay the maximum amounts to surviving victims.
20 Relaxed standards of proof were applied. While priority was given to documentary evidence, in the absence of such evidence the claim could be made credible by any other means, including a credible statement by the applicant. Moreover, this lower standard allowed assumptions to be made based on historical experience. For instance, a general assumption was applied that all persons who had been detained in a concentration camp or a ghetto had also been forced to work.
21 In order to guarantee a high level of accuracy of the decision practice of the partner organizations, regular reviews were carried out by the Foundation before payments for personal injuries were processed. Thereby, the Foundation was in a position to react to systematic problems in the processing of applications in a partner organization and, by and large, to guarantee that the criteria of the German Foundation Law were observed. Moreover, complaints against decisions adopted by a partner organization could be submitted to a body attached to the organization responsible for processing the application. A certain independence of the appeals body from the partner organization was secured through the control exercised by the Foundation with a view to appointment and dismissal of members of the appeals body.
22 The task to decide on applications concerning property losses was assigned to an independent Property Commission composed of three members; one representative chosen by the German and the US governments respectively as well as the president chosen by these two members. The Property Commission was assisted by a secretariat at the IOM in Geneva. In order to cope with the high number of applications (almost 35,000) as quickly as possible, the Property Commission established clusters of historical situations and worked with a number of historical assumptions. Most importantly, the direct causation of the property damage by a German company was assumed if the respective company benefited from the loss of property within a year after the loss had been suffered. For assessing the amount of the damage, lump sum factors were applied in order to avoid complex and differentiated calculation of the actual damage incurred. Appeals were possible, but limited to a review of new evidence or other aspects not taken into account in the first decision, if the applicant could show that the omission in the first procedure was not his own fault. The review was carried out by the Property Commission itself.
23 After awards varying between €12 and €1 million had been made to more than 15,000 eligible applicants in over 30 countries, the amount of damages according to the assessment by the Property Commission exceeded the ceilings assigned for the respective property damages. As a consequence, the actual payment sum had to be reduced pro rata: payments for damages related to persecution had to be reduced by about 13.5% and for other damages by about 32%.
D. Legal Closure
24 As mentioned before, in addition to the aim of granting some satisfaction to victims of Nazi injustice, the concept of legal closure was pursued with the establishment of the Foundation. A number of measures were adopted in this respect.
25 Regarding the commitments of the US according to the Government Agreement, two issues need to be mentioned. First, it is stated in Art. 3 (3) Government Agreement that ‘[t]he United States will not raise any reparations claims against the Federal Republic of Germany’. This statement clearly contains a binding waiver of any eventual reparations claims.
26 Second, with a view to protection of Germany and German companies against legal action brought by individuals in US courts the obligations of the US government in the Government Agreement are twofold. In the case of legal action against Germany the US government shall, according to Art. 3 (4) Government Agreement ‘take appropriate steps to oppose any challenge to the sovereign immunity’ (see also United States Foreign Sovereign Immunities Act ). And, the US government is obliged under Art. 2 (1) Government Agreement to issue a statement of interest in any court case involving claims against Germany or German companies in a US court involving or related to the subjects covered under the respective programmes. A statement of interest was supposed to underline that the payment programme was designated as the exclusive forum providing for a fair and equitable resolution of all issues addressed under the programme. Moreover, it was supposed to state that the dismissal of the lawsuit was in the foreign policy interests of the US. Since the statement of interest does not constitute a specific legal basis for dismissal it does not provide an absolute protection against legal action. One option for dismissing a case based on a statement of interest was the political question doctrine according to which certain questions are assigned to the exclusive domain of the executive and cannot be controlled by the courts. Another possible legal ground for dismissal taking into account a statement of interest is the doctrine of forum non conveniens, which requires the courts to dismiss a case if US courts do not constitute the appropriate forum for cases where the events took place abroad.
27 The contribution of German companies was due after the final dismissal of all lawsuits pending before US courts including those listed in Annexes C and D Joint Statement (No 4 d Joint Statement). A wrong translation of the respective provision into German which referred to the transferral of the cases to a federal judge provoked severe disputes over the point in time at which the contribution was due. Moreover, the beginning of payments was conditional on the establishment of ‘sufficient legal peace for German companies’ in the US (Sec. 17 (2) German Foundation Law). The Bundestag (German Federal Parliament) was responsible for deciding on this condition; with the consent of the German companies the Bundestag already declared sufficient legal peace, while a small number of cases were still pending.
28 The aim of achieving legal closure was also pursued by rendering payments conditional on the signing of a waiver by an applicant. This instrument could potentially be used against claims raised anywhere in the world. The waiver contained an irrevocable renunciation of any claims beyond the current programmes arising ‘in connection with National Socialist injustice’ against German companies and in connection with forced labour and property damages against public bodies.
29 The potential impact of the waiver is increased by a broad definition of ‘German companies’: it includes those which have had their seat within the borders of the German Reich of 1937 or who now have it in the Federal Republic of Germany as well as mother companies whether in Germany or abroad. Moreover, it covers those companies abroad in which a company fulfilling the seat criterion had a share of at least 25% (Sec. 12 (2) German Foundation Law).
30 The protection of public bodies and German companies is further reinforced in Sec. 16 (1) German Foundation Law by defining the Foundation as the exclusive remedy and forum for claims relating to National Socialist injustice apart from already existing norms granting compensation in specific legislation. Previously, it had been disputed whether claims concerning forced labour were still enforceable.
31 A legal problem may be seen in this context with regard to Art. 14 Basic Law for the Federal Republic of Germany, the fundamental right to property (see also Property, Right to, International Protection). If there was a legal right for compensation this would be protected under Art. 14 Basic Law for the Federal Republic of Germany. However, the foundation solution was generally favourable to the victims’ interests: before the foundation solution had been adopted, practically no legal action in Germany had succeeded in the courts, in particular, for reasons of expiry of forfeiture deadlines. Additionally, the German Federal Constitutional Court had already endorsed the possibility of a transposition of private law claims against certain companies into claims against an adequately financed fund. The Contergan decision concerned a foundation for children who had been born with a handicap caused by a certain medicine (BVerfGE 42, 295 concerning the Gesetz über die Errichtung einer Stiftung ‘Hilfswerk für behinderte Kinder’ [Law on the Creation of a Foundation for Handicapped Children] [17 December 1971]  [BGBl I] 2018). Moreover, the social function of a foundation solution was emphasized in the explanation on Sec. 16 (1) Draft of the German Foundation Law, in particular with regard to the independence of eligibility under the payment programme from the continuing legal existence of the company for which the forced labour had been performed and was confirmed by the German Federal Constitutional Court in the decision Zwangsarbeitsentschädigung of 7 December 2004.
32 Regarding the criteria established by the Federal Constitutional Court, the question arises whether the Foundation was adequately funded in every respect. Whereas the classical forced labour claims of victims who had been deported, detained, and forced to work prompted a substantial payment in the case of every eligible applicant, the German Foundation Law also contains a number of ‘catch-all’ clauses which were rather underfunded. In particular, the category of other personal injuries in principle covered any kind of personal injuries suffered because of Nazi injustice including any persisting bodily harm of a certain severity. However, the ceiling designated for this category was DM50 million (about €25.56 million) only. As a consequence, only those victims who were given priority—victims of medical experiments and cases of children detained in homes for children of forced labourers—received a payment at all. Nevertheless, all cases of this type are also covered by the general clause denying the right to any further claims outside the Foundation framework. Similar questions may be raised with regard to the small overall amount assigned for property claims (DM200 million, about €102 million), which led to far-reaching cuts in the sums paid out in comparison to the damage suffered—some 13.5% in cases of damages related to persecution, some 32% in cases of other damages.
E. Problems of Interpretation
33 In practice, the criteria gave rise to numerous problems of interpretation of which only the most important—pertaining to the criteria of eligibility—can be briefly addressed here.
34 In the first category related to forced labour criteria were detention in a concentration camp, ghetto, or another place of confinement defined by lack of nutrition, medical care, and inhuman detention conditions (see para. 11 above). Concentration camps were defined by reference to the Federal Compensation Law and the Sechste Verordnung zur Durchführung des Bundesentschädigungsgesetzes (Sixth Executive Regulation to the Federal Law for the Compensation of the Victims of National Socialist Persecution) enacted pursuant to this law, which contained a list of places formally designated as ‘concentration camps’; however, this list was considered incomplete since it was mainly based on decisions taken in connection with individual applications, not based on systematic research. No such list existed with regard to ghettos or other places of confinement. The latter were designated as such by the board of trustees of the Foundation based on recommendations by historians or the partner organizations; some 3,906 places of detention were recognized to fulfil the criteria of the German Foundation Law as ‘other places of confinement’.
35 Regarding deported forced labourers, the provisions adopted in the German Foundation Law were aimed at labourers from Central and Eastern European countries. This had not been set out explicitly in the law but was realized by interpreting the criterion of ‘similar extremely harsh living conditions’ as a condition for eligibility for deported forced labourers in those cases where the workers were not detained. Persons of Slavic origin had suffered systematic discrimination for racial reasons. Moreover, it was argued that the German law was underpinned by the purpose to deliver a gesture of late justice to victims in Central and Eastern Europe after they had been cut off from any compensation scheme for so long due to political reasons. However, the wording of the criterion of ‘similar extremely harsh living conditions’ also gave rise to expectations on the part of former forced labourers from Western Europe.
36 The ‘opening clause’ in Sec. 11 (1) sentence 2 German Foundation Law provided partner organizations with a certain flexibility in establishing criteria for additional groups of victims eligible for payment. By way of example, the German Foundation Law mentions the forced labourers in agriculture as an ‘other National Socialist injustice’. Other examples from practice are persons who went into hiding (in particular, Jews and Sinti and Roma), children who were deported with their parents but did not perform forced labour, and persons who were detained under appalling conditions without being forced to work. The only legal requirements are a minimum similarity with one of the criteria underpinning the categories defined by law (detention, deportation, or forced labour) and the observance of financial limitations. In practice, this has led to greater differences between the various partner organizations in defining eligibility under the opening clause: those partner organizations with a particularly narrow allocation of funds had to adopt a particularly narrow definition of new groups of eligible victims under the opening clause.
37 Serious problems of interpretation were raised by the provision referring to prisoners of war. It has already been mentioned that prisoners of war detained in concentration camps were eligible for payment despite their status. Also Polish and Soviet prisoners of war who were forced to work under a civilian status were considered eligible despite the fact that they had not lost their prisoner of war status under international law. In contrast to that, so called ‘Italian Military Internees’, Italian soldiers detained by German troops after Italy had agreed on a ceasefire with the Allied Powers in autumn 1943, were refused payment. The German Reich had denied the status as prisoners of war to the persons concerned by designating them as ‘military internees’ (see also Internment) and in practice never treated them as prisoners of war even though this status was clear under international law. Also the fact that most of those ‘Italian Military Internees’ were forced to work under a civilian status did not lead to eligibility. The German government’s argument in this respect was that this group of victims—in contrast to released Polish prisoners of war—had not been included in the calculations for allocations during the negotiations on the establishment of a foundation. In an obiter dictum, the International Court of Justice (ICJ) stated that it was ‘a matter of surprise – and regret’ that this group of victims remained excluded on the ground that they had been entitled to a specific protection status which at the time had been denied to them and suggests further negotiations on those claims between Germany and Italy (Jurisdictional Immunities of the State [Germany v Italy: Greece Intervening] paras 99 and 104; Jurisdictional Immunities of the State [Germany v Italy: Greece Intervening]).
38 The payment programme constitutes an example for a settlement of millions of legal claims arising from a situation of gross and systematic human rights violations. It coincides with the creation of other payment programmes in Austria and Switzerland (Bank 307–8). Both advantages and disadvantages of such a mass claims approach became evident in the course of the programme. The programme had to be carried out under high time pressure since the victims were very old and any delay in the procedures inevitably meant that the gesture would reach fewer of its addressees. Consequently, it had repeatedly been emphasized by the drafters that procedures for determining eligibility had to be non-bureaucratic and expeditious. To this end, instead of evaluating in detail every individual fate, broad categories of eligibility as well as the lower standards of proof contributed to a speedy processing of claims. Between May 2001 when payments started and the end of 2006 when the programme ended, the Foundation and its partner organizations processed payments to more than 1.6 million individuals all over the world. At the same time, as far as can be judged by the public reports of the Foundation, a high level of accuracy was achieved in the decisions and payments.
39 Important progress was achieved with a view to legal peace for Germany and German companies in general—even though there can be no comprehensive protection against litigation. In particular, cases concerning Nazi injustice which were not covered by the Foundation Law kept being litigated. In Italy, Germany was denied immunity against such litigation in the Ferrini Case by the Italian Corte di Cassazione in 2004 concerning a former forced labourer in the armament industry who was not eligible under the Foundation criteria (Ferrini c Republica Federale di Germania Corte Suprema di Cassazione [11 March 2004] (2004) 87 RivDirInt 539) and in subsequent decisions by Italian courts in 2008. In the case brought by Germany against Italy before the ICJ, the Court held that the jurisdictional immunity of Germany was to prevail (Jurisdictional Immunities of the State para. 107). The progress prompted by the foundation solution is not limited to the dismissal of most of the cases that were pending at the time the foundation solution was agreed on but extends to future cases as well, in particular due to the individual waivers. In this context, it is important to emphasize that the foundation solution aims at legal closure (concerning litigation with practically little prospect of success), not moral closure. On the contrary, the Foundation also constitutes an attempt to avoid moral closure. This is not only due to the effects of the awareness of the situations addressed under the Foundation’s payment scheme; it is also reflected in the second pillar of the Foundation, which is the so-called Fund ‘Remembrance and Future’. This permanent Fund has the task to support projects fostering, in particular, the understanding of peoples as well as the remembrance of the threats which emanated from totalitarian systems. An attempt to bring moral closure would also run contrary to the broad concept of reparation, which should include measures of moral recognition of the injustice committed. In addition, after the payments under the German Foundation Law had been finalized, new small-scale programmes were also still agreed on and implemented. In particular, in 2015, a programme for former members of the Soviet Army who had been detained as prisoners of war during World War II was created. And, in 2018, it was agreed to make a financial gesture to persons who had been evacuated from Germany as children and separated from their parents in 1938.
40 A problematic approach was to include large groups of cases into the Law in principle, while in practice they remain excluded from payment but not from the effects of legal closure. This applies, for instance, to groups of victims potentially covered by the ‘opening clause’ but not falling under the respective clause of a partner organization or to persons having suffered severe health damage. These ‘catch all’ clauses may also have contributed to the expectation that everybody having suffered any kind of Nazi injustice would receive some payment—thereby provoking significant disappointment among groups of victims not eligible under the programme. The same observation applies to the far-reaching exclusion from eligibility of forced labourers from Western Europe. The clause that ‘particularly harsh living conditions’ would be interpreted in such a way as to constitute the criterion excluding this group from eligibility, only became clear after thousands of former forced labourers from Western Europe had already submitted their claims with high expectations.
41 The German Foundation Law openly recognizes in the Preamble that it is impossible to make good by way of financial compensation for any of the harm caused. This is first of all due, of course, to the immensity of the suffering involved in the cruel treatment at the hands of Germany and its allies during the Nazi era. Deportation to a foreign country, long periods of forced labour under constantly degrading and life-threatening conditions, let alone exploitation by labour while awaiting extinction in a programme of racial persecution can never be fully compensated. But it is also due to the fact that any attempt to compensate for the suffering comes too late for those who were killed during the war or who had died before the Foundation was established. On the other hand, the founders wished to acknowledge the injustice and the suffering caused by the German State and by German companies and to accept their responsibility by granting a modest sum to those victims still alive. This gesture, it seems, was received positively by many of the former victims. Even though the foundation solution only provided for—long delayed—symbolic payments without attempting to compensate individual suffering, the payment programme constituted a positive contribution to reconciliation. In particular, it allowed the individual victim to present his or her account of the fate suffered and constituted an acknowledgement of the injustice committed. This was all the more important for victims who had lived in the Soviet Union after World War II and had to suppress their personal history for fear of additional persecution by the communist regime for alleged ‘collaboration’.
Agreement between the Government of the United States of America and the Government of the Federal Republic of Germany concerning the Foundation ‘Remembrance, Responsibility and the Future’ (done 17 July 2000, entered into force 19 October 2000) 2130 UNTS 250.
Bundesgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung (Federal Law for the Compensation of the Victims of National Socialist Persecution) (18 September 1953) (1953) BGBl I 1387.
Contergan Bundesverfassungsgericht (German Federal Constitutional Court) (8 July 1976) 42 BVerfGE 263.
Entwurf eines Dritten Gesetzes zur Änderung des Gesetzes zur Errichtung einer Stiftung ‘Erinnerung, Verantwortung und Zukunft’ (Draft on a Third Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’ (Bundestag Drucksache 15/3044) (4 April 2004).
Entwurf eines Gesetzes zur Errichtung einer Stiftung ‘Erinnerung, Verantwortung und Zukunft’ (Draft on the Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’) (Bundestag Drucksache 14/3206) (13 April 2000).
Gesetz zur Errichtung einer Stiftung ‘Erinnerung, Verantwortung und Zukunft’ (Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’) (2 August 2000) (2000) BGBl I 1263.
Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) (23 May 1949) (1949) BGBl I 1.
Joint Statement on the Occasion of the Final Plenary Meeting concluding International Talks on the Preparation of the Foundation ‘Remembrance, Responsibility and the Future’ (17 July 2000) 2130 UNTS 261.
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (Judgment)  ICJ Rep 99.
Sechste Verordnung zur Durchführung des Bundesentschädigungsgesetzes (Sixth Executive Regulation to the Federal Law for the Compensation of the Victims of National Socialist Persecution) (23 February 1967) (1967) BGBl I 233.
Sechster und abschließender Bericht der Bundesregierung über den Abschluss der Auszahlungen und die Zusammenarbeit der Stiftung ‘Erinnerung, Verantwortung und Zukunft’ mit den Partnerorganisationen (Sixth and Last Report of the Government concerning final payments and the Co-operation of the Foundation ‘Remembrance, Responsibility and Future’ with Partner Organizations) (Bundestag Drucksache 16/9963) (9 July 2008).
Vereinbarung zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Durchführung und Auslegung des am 31. August 1990 in Berlin unterzeichneten Vertrages zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands (Additional Agreement to the Treaty on Unification) (18 September 1990) (1990) BGBl II 1239.
Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands (Einigungsvertrag) (Treaty on the Establishment of German Unity) (31 August 1990) (1991) 30 ILM 457.
Zwangsarbeitsentschädigung Bundesverfassungsgericht (German Federal Constitutional Court) (7 December 2004) 112 BVerfGE 93.
Zweites Gesetz zur Änderung des Bundesentschädigungsgesetzes (Final Federal Compensation Law) (14 September 1965) (1965) BGBl I 1315.