Practice Relating to Rule 150. Reparation
In Case No. 894/2001 in 2001, Greece’s Court of Appeal of Piraeus stated:
The international responsibility of the belligerent party was considered in the past as a responsibility towards the states and not the individuals, since the latter were only exceptionally recognized as subjects of international law … However the individuals are already recognized as direct subjects of international law in many sectors (e.g. human rights) and this is the contemporary tendency in international relations … [T]herefore it should be accepted that the violation of the Regulation of Laws and Customs of War on Land, annexed to the fourth Hague Convention (19th October 1907) … creates an individual right for reparation of the victims of the violation and therefore the plaintiffs can raise against the German state an individual claim before the Greek courts.
A decision of the Court of First Instance of Leivadia in Greece in 1997 related to a claim for compensation against Germany brought by the prefecture of Voiotia and a number of individual claimants. The claims were based on acts – wilful murder and destruction of private property – committed by German occupation forces in June 1944. The Court rejected the German Government’s assertion of sovereign immunity on the ground that if a State acted in violation of a rule of jus cogens
, it lost its right to invoke sovereign immunity. As the Court had previously concluded that the rules of IHL relating to belligerent occupation protecting, inter alia
, the right to life, family honour, property and religious convictions were part of jus cogens
, it found that Germany could not claim sovereign immunity. Having rejected Germany’s claim of immunity, the Court then determined that the suit was lawful under Article 3 of the 1907 Hague Convention (IV) and Article 46 of the 1907 Hague Regulations. It also considered that, in the absence of a rule of international law prohibiting this, the claims could be made by the plaintiffs in their individual capacity and not necessarily by their State of nationality. It also held that the words “if the case demands” in Article 3 of the 1907 Hague Convention (IV) specifically underlined that material damage must have been caused as a result of the violations of the conventions. The Court then reviewed the claims, rejecting those which lacked sufficient evidence of the property destroyed or of its value, and made awards of compensation in other cases.
In May 2000, the Supreme Court upheld the lower court’s decisions, basing its conclusion that Germany was not entitled to sovereign immunity both on a finding that there existed a customary “tort law” exception to the doctrine of sovereign immunity and that as the acts in question violated peremptory norms of international law, they did not attract immunity.
However, with regard to the same case, the Greek Government refused to give its consent necessary for the execution of the judgment against Germany for reasons of State immunity.
In its judgment in Case No 93/1998 in 1998, Greece’s Court of First Instance of Larissa stated:
The plaintiffs claim a compensation of 340.000.000 drachmas, due to the murder of their relatives who were executed by the German occupation troops in a village of the Larissa prefecture on 2.4.1944, as reprisals for the activity of the Greek resistance movement …
According to the Convention of Vienna on Diplomatic and Consular Relations (1961 and 1963 respectively) the waiver of the privilege of immunity shall be explicit (art. 32§2 and 45§2 respectively) … Therefore it is accepted that a state can claim immunity even for acts that were committed in violation of international jus cogens
rules … [A] tacit waiver cannot be accepted.