Germany
Practice Relating to Rule 150. Reparation
In 1995, in reply to a question from members of the Lower House of Parliament with respect to reparation payments to Greek victims of the German National Socialist regime, the German Government stated:
The … alleged claims of Greece with regard to Germany are claims for reparation … After 50 years have passed since the end of the war and [after] decades of peaceful, trustingly and fruitful co-operation of the Federal Republic of Germany with the international community of States, the issue of reparations has lost its legitimacy. Since the end of the Second World War, Germany has made reparations to a high degree, which, according to general public international law, the States concerned should use to compensate their nationals … Additionally, reparations [made] 50 years after the end of hostilities would constitute an exception without precedence in the practice of public international law. 
Germany, Lower House of Parliament, Response by the federal government to a question from members of parliament, Payments in compensation to Greek victims of the National Socialist regime, BT-Drucksache 13/2878, 7 November 1995.

In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Gaza War”, Germany’s Federal Government wrote:
b) Does the Federal Government consider it necessary to require Israel to make reparation for Gaza in order to repair the damage caused by the war?
In principle a State’s responsibility under international law is only engaged in case the State acted contrary to international law. In this respect, reference is made to the answers to questions 2 and 4. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Dr. Norman Paech, Monika Knoche, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 16/12087, 27 February 2009, p. 6.

2. a) Is it correct that the Federal Government still considers the Gaza-Strip as territory occupied by Israel?
b) If so, does the Federal Government share the view that the conflict between Israel and the Palestinians constitutes an international armed conflict?
c) If not, why not?
On 12 September 2005, Israel withdrew from the Gaza Strip after 38 years. However, it continues to exercise control over the borders and airspace of the Gaza Strip. The Federal Government is thus of the view that the civilian population in the Palestinian territories occupied by Israel is protected by international humanitarian law, in particular the [1949] Geneva Convention IV relative to the Protection of Civilian Persons in Time of War. This remains the case as long as Israel is exercising effective control over the Gaza Strip as occupying power. Therefore, in the Federal Government’s view, the provisions of the Geneva Convention IV relative to the Protection of Civilian Persons in Times of War apply to the armed confrontations between Israel and Hamas in Gaza. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Dr. Norman Paech, Monika Knoche, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 16/12087, 27 February 2009, p. 3.

4. How does the Federal Government justify its position that despite the allegations of independent international observers that Israel committed war crimes and human rights violations during the recent war in the Gaza Strip, the creation of an International Commission to investigate such allegations is to be blocked?
The Federal Government has always emphasized that fundamental rules of international humanitarian law must also be respected in Gaza … An investigation commission of the United Nations which examines attacks against UN installations and operations during the Gaza war began its work on 12 February 2009 and will report to the Secretary General of the United Nations after completing its investigations. The Federal Government agrees with its partners in the European Union that the result of these investigations should not be pre-empted. This common position is also reflected in the Council conclusions of 26 and 27 January 2009: “The Council reminds all parties to the conflict to fully respect human rights and comply with their obligations under international humanitarian law and will follow closely investigations into alleged violations of international humanitarian law.” 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Dr. Norman Paech, Monika Knoche, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 16/12087, 27 February 2009, p. 4.

Germany’s Military Manual (1992), referring to Article 91 of the 1977 Additional Protocol I and Article 3 of the 1907 Hague Convention (IV), provides: “A party to a conflict which does not comply with the provisions of international humanitarian law shall be liable to pay compensation.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1214.

Since the end of the Second World War, Germany has adopted several laws relative to the indemnification of victims of the war and the Holocaust, such as: the Law on the Equalization of Burdens as amended (1952); the Law for the Compensation of the Victims of National Socialist Persecution (1953), as amended in 1965; the Federal Restitution Law as amended (1957) which provides for compensation in case restitution was not possible; the Law on the Reparation of Losses as amended (1969); the Law on the Settlement of Open Property Matters as amended (1990); and the Law on Indemnification of Victims of Nazism as amended (1994). 
Germany, Law on the Equalization of Burdens, 1952, as amended; Law for the Compensation of the Victims of National Socialist Persecution, 1953, as amended in 1965; Federal Restitution Law, 1957, as amended; Law on the Reparation of Losses, 1969, as amended; Law on the Settlement of Open Property Matters, 1990, as amended; Law on Indemnification of Victims of Nazism, 1994, as amended.

In 2000, the German Bundestag (Lower House of Parliament), with the concurrence of the Bundesrat (Upper House of Parliament), adopted the Law on the Creation of a Foundation “Remembrance, Responsibility and Future” (2000), as amended in 2001, thereby establishing a foundation responsible for making payments to entitled claimants and setting maximum amounts to be awarded to different categories of claimants. 
Germany, Law on the Creation of a Foundation “Remembrance, Responsibility and Future”, 2000, as amended in 2001.

1. persons who were held in a concentration camp … or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labor;
2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labor in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in Number 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions;

3. persons who suffered property loss as a consequence of racial persecution with essential, direct, and harm-causing collaboration of German businesses … The partner organizations may also award compensation from the funds provided to them … to those victims of National Socialist crimes who are not members of one of the groups mentioned in Sentence 1, Numbers 1 and 2, particularly forced laborers in agriculture … The funds provided for in Section 9, Paragraph 4, Sentence 2, Number 2 are intended to compensate property damage inflicted during the National Socialist regime with the essential, direct, and harm-causing participation of German enterprises, but not inflicted for reasons of National Socialist persecution. The funds referred to in Section 9, Paragraph 3, shall be awarded in cases of medical experiments or in the event of the death of or severe damage to the health of a child lodged in a home for children of forced laborers; in cases of other personal injuries they may be awarded.

(3) Eligibility cannot be based on prisoner-of-war status. 
Germany, Law on the Creation of a Foundation “Remembrance, Responsibility and Future”, 2000, as amended in 2001, Section 11.

Germany’s Federal Government Directive concerning the payment of amounts to victims of persecution in recognition of work in a ghetto which did not constitute forced labour and which has not been recognized to date under social insurance law (2007) states:
Persecuted persons within the meaning of § 1 of the Federal Law for the Compensation of the Victims of National Socialist Persecution [Bundesentschädigungsgesetz (BEG) – Federal Indemnification Act] who have been forced to live in a ghetto in an area under national socialist influence and who during this time have been employed without coercion in an employment-like relation, can receive a one-off payment according to this Directive if
1. that time has not already been recognized as a ghetto contribution period according to the Law for the Payment of Pensions for Periods of Work in a Ghetto of 20 June 2002 ([Gesetz zur Zahlbarmachung von Renten aus Beschäftigungen in einem Ghetto (ZRBG)]), and payments are not already being made for this time from a social security system,
2. for that work they have not received a payment from the funds of the Foundation “Remembrance, Responsibility and Future” or could have received such payment. 
Germany, Federal Government Directive concerning the payment of amounts to victims of persecution in recognition of work in a ghetto which did not constitute forced labour and which has not been recognized to date under social insurance law, 2007, Section 1, § 1(1) and (2).

In 1952, the German Administrative Court of Appeal of Münster heard a claim for compensation for injuries suffered by a German national as a result of a road accident with a vehicle belonging to the occupying powers. The Court held that the liability of occupying powers for injuries caused by their personnel was strict and that:
The plaintiff’s claim for damages derives not only from public municipal law but also from international law. By virtue of Article 3 of the [1907 Hague Convention (IV)] a State is liable for all acts committed by persons belonging to its armed forces. According to the wide wording of Article 3, which has been chosen in the interests of the protection of the civilian population, fault on the part of the person who has caused the damage is not a prerequisite of liability. It is therefore an undisputed principle of the doctrine of international law that Article 3 provides for the absolute liability of the Occupant in respect of acts committed by members of its armed forces. Within the framework of this absolute liability for which international law provides, a State is under a duty – according to the views of writers on international law which have, however, not yet been universally accepted – to pay compensation for “incorporeal” damage. 
Germany, Administrative Court of Appeal of Münster, Personal Injuries case, Judgment, 9 April 1952.

In the Reparation Payments case in 1963 relating to claims for compensation for slave labour during the Second World War, Germany’s Federal Supreme Court stated that the claims were in the nature of reparations claims and that “with regard to the inextricable connection with the question of reparations under international public law … it is not possible to deny the right to compensation based on civil law from the outset”. 
Germany, Federal Court of Justice (Bundesgerichtshof), Reparation Payments case, Judgment, 26 February 1963.

In the Forced Labour case in 1996, Germany’s Constitutional Court held obiter that there did not exist a rule of general international law preventing the payment of compensation to individuals for violations of international law. The Court added that it was therefore not prohibited for a State that has violated international law to allow individuals to bring claims for compensation for events during the Second World War through its national courts. 
Germany, Second Chamber of the Constitutional Court, Forced Labour case, Judgment, 13 May 1996.

In the Distomo case in 2003 dealing with killings committed by German soldiers in Greece during the Second World War, Germany’s Federal Supreme Court stated that, due to a concept of war as a “relationship from State to State” as it existed during the Second World War, a State which was responsible for crimes committed at that time was only liable to pay compensation vis-à-vis another State but not vis-à-vis the individual victims. According to the Court, international law conferred the right upon States to exercise diplomatic protection of their nationals, and the right to claim compensation was the right of the State. With reference to Articles 2 and 3 of the Hague Convention (IV) and declaring the 1907 Hague Regulations as being directly applicable, it stated that this was true “at least for the period in question”, i.e. for the time of the Second World War. 
Germany, Federal Court of Justice (Bundesgerichtshof), Distomo case, Judgment, 26 June 2003.

In the Distomo case in 2006, the Federal Constitutional Court held:
The constitutional complaint is not accepted for decision.
Grounds:
1
The constitutional complaint concerns the question of the liability of the Federal Republic of Germany to pay damages and compensate for “reprisals” taken by members of the German armed forces during the occupation of Greece in World War II.
I.
2
1. The complainants are Greek nationals. On 10 June 1944, their parents were shot in the course of a “reprisal action” against the inhabitants of the Greek locality Distomo by members of an SS unit incorporated in the German occupation forces, after an armed confrontation with partisans had previously taken place. The soldiers in total killed between 200 and 300 of the approximately 1,800 inhabitants – not involved in the partisan fightings – of the village. Among the victims were mainly elderly persons, women, children and infants. The village was burnt down. The complainants, minors at the time, survived only due to the fortunate circumstance that a German soldier had signalled them to hide …
3
2. In September 1995, the complainants brought an action before the Regional Court. They sought the declaration that the Federal Republic of Germany was under the obligation to compensate them for the material damage they had suffered as a result of the operation of the SS unit in Distomo on 10 June 1944. The Regional Court, like the Higher Regional Court seized as court of appeal, dismissed the action. The complainants’ appeal on points of law [Revision] before the Federal Court of Justice, allowed by the Higher Regional Court, was also unsuccessful. By contrast, in parallel proceedings in Greece, in which, amongst others, the complainants participated, the competent Regional Court Levadeia had decided in October 1997 that the compensation claims based on the same facts were well founded.
II.
4
The complainants allege a violation of their Basic Rights based on Article 1, paragraph 1, Article 2, paragraphs 1 and 2, Article 3, paragraph 1, Article 14, paragraph 1, sentence 1, and paragraph 3, Article 19, paragraph 4, Article 101, paragraph 1, sentence 2, as well as Article 103, paragraph 1 of the Basic Law.

III.
12
The constitutional complaint is not accepted for decision because the requirements for accepting a complaint under Section 93 a, paragraph 2 of the Law on the Federal Constitutional Court are not fulfilled. To the extent that the constitutional complaint is admissible, it is unfounded. Ultimately, there are no objections under constitutional law against the contested decisions.
13
1. The constitutional complaint – filed within the time limit – is only partially admissible.
14
a) Insofar as the complainants allege a violation of their Basic Right under Article 103, paragraph 1 of the Basic Law, the constitutional complaint does not meet the substantiation requirements following from Sections 92, 23, paragraph 1, sentence 2 of the Law on the Federal Constitutional Court [Bundesverfassungsgerichtsgesetz – BVerfGG]. The complainants’ submission that the rejection of a compensation claim based on Article 3 of Hague Convention IV had violated their right to a hearing in accordance with law is not sufficiently substantiated. As the complainants themselves concede, the competent courts below closely examined the question whether in the case of a violation of norms of the Hague Regulations an individual claim directly follows from Article 3 of Hague Convention IV. The complainants thereby allege that the courts did not follow their differing legal view, something which is, however, not part of the protective scope of Article 103, paragraph 1 of the Basic Law …
15
The same applies to the violation of Article 19, paragraph 4, sentence 1 of the Basic Law alleged by the complainants …
16
b) The violation of their general rights of personality as well as their right to physical integrity, alleged by the complainants, is not sufficiently substantiated either. According to the complainants’ submission it does not appear to be possible that the not-granting of compensation claims violated them in these rights. Neither from the general rights of personality nor from the right to physical integrity can be inferred a right to judicial decisions which comply with the legal view of the complainants …
17
2. The constitutional complaint has no prospect of success on the merits. The challenged decisions do not violate the claimants’ Basic Rights.
18
a) There are no objections under constitutional law to the Federal Court of Justice’s refusal to be bound by the judgement of the Greek Regional Court Livadeia of 30 October 1997. According to applicable international law, a State can demand exemption from another State’s jurisdiction if and to the extent that the assessment of its sovereign acts – so called acta iure imperii – is concerned … Since the SS unit involved in the events in Distomo was incorporated into the armed forces of the German Reich, the assaults are to be classified as sovereign acts, irrespective of the question of their unlawfulness under international law. The Federal Court of Justice therefore correctly held that it was not bound by the judgement of the Greek Regional Court.
19
b) Insofar as the complainants allege a violation of Article 14, paragraph 1 of the Basic Law, it is true that claims for damages and compensation against the Federal Republic of Germany – their existence assumed – would indeed come under the protective scope of the guarantee of property … The claimants, however, neither have claims for damages or compensation based on international law, nor based on liability for breach of official duty or the doctrine of fair compensation for a special sacrifice to the community [Aufopferungsanspruch].
20
aa) Article 3 of Hague Convention IV does not give rise to a direct individual compensation claim for violations of the international law of war (comp. Federal Constitutional Court, Decision of 28 June 2004, 2 BvR 1379/01, “Italian military internees”). Admittedly, the origin of the norm shows that it is intended to protect the individual and is therefore of a nature indirectly protecting human rights (comp. Federal Constitutional Court, Decision of 28 June 2004, 2 BvR 1379/01, “Italian military internees”). However, it does not follow from this that the provision could be the basis of a direct, originally international law compensation claim of the concerned individual vis-à-vis the State.
21
A first argument against this is already the wording, according to which a belligerent party in the event of a violation of the Hague Regulations shall, “if the case demands”, be liable to pay compensation. Since Article 3 of Hague Convention IV, in view of the restricting addition, insofar is not “self executing”, an understanding of the norm as a basis of individual claims is already prevented by its lack of direct applicability. Secondly, according to the traditional conception of international law, the individual was not classified as a legal subject … Regardless of developments on the level of human rights protection, which have led to the recognition of the individual as a partial subject of international law as well as to the establishment of treaty-based individual complaints procedures, it is still only the home State which is entitled to secondary law compensation claims based on international wrongful acts of a State against foreign nationals.
22
In the present case, potential legal developments or changed legal views on the level of constitutional or international law in any case cannot be taken into consideration as regards the assessment of events in the year 1944. The differing legal view of the complainants is due to an incorrect understanding of Article 135 a, paragraph 1, no. 1 of the Basic Law. Admittedly, according to this provision the decision whether payments by the State for obligations of the German Reich are to be granted is to be made by the Federal legislator. It does not follow from this, however, that the question of the existence of an obligation of the Reich, which is quasi precursory, is to be assessed on the basis of the legal situation prevalent at the time the claim is made. Concerning this, as a principle, it is the legal provisions in force at the time of the events giving rise to liability which are to be applied.
23
bb) The complainants also have no claim according to Section 839 of the Civil Code in conjunction with Article 131 of the Weimar Constitution [State liability for breach of official duty]. A liability of the Federal Republic of Germany is ultimately prevented by the lack of a guarantee of reciprocity within the meaning of Section 7 of the Law on the Liability of the Reich for its Officials (old version) [Gesetz über die Haftung des Reichs für seine Beamten – RBHG a.F.].
24
With regard to the provision giving rise to liability, the Federal Court of Justice essentially considered that a claim based on Section 839 of the Civil Code in conjunction with Article 131 of the Weimar Constitution had been eclipsed by the specific inter-State liability regime under international law, applicable at the time of the events. It need not be decided whether such an eclipse does justice to the necessity to ensure compliance with the rules of the international humanitarian law of war also in domestic legal orders in the form of parallel possibilities for sanctions (comp. Higher Regional Court of Cologne, Judgement of 28 July 2005, 7 U 8/04, “Bridge of Varvarin”; Federal Constitutional Court, Decision of 28 June 2004, 2 BvR 1379/01, “Italian military internees”). This is so because, ultimately, in the present case the exclusion of liability under Section 7 of the Law on the Liability of the Reich for its Officials (old version) applies, as correctly found by the Federal Court of Justice … According to the version of this provision applicable until 30 June 1992, a provision which was compatible both with the Basic Law and the general rules of international law within the meaning of Article 25 of the Basic Law …, nationals of a foreign State had a claim based on breach of official duty against the Federal Republic only if reciprocity was guaranteed by the legislation of a foreign State or by international treaty. Such a guarantee on the part of Greece vis-à-vis Germany was given only after the end of World War II (comp. publication of 31 May 1957, Federal Law Gazette 1957, Part I, p. 607).
25
The application of Section 7 of the Law on the Liability of the Reich for its Officials (old version) does not conflict with Article 25 of the Basic Law. There is no general rule of international law which generally demands equal treatment of foreign nationals and own nationals. Admittedly, it will generally run counter to the principles of international humanitarian law recognized as customary law if all compensation is denied to a wrongfully injured individual … In the present case, however, this situation does not arise, because Section 7 of the Law on the Liability of the Reich for its Officials (old version) did not exclude liability of breach for official duty in general, but only the transfer of liability to the State according to Article 34 of the Basic Law or Article 131 of the Weimar Constitution …
26
Recourse to Section 7 of the Law on the Liability of the Reich for its Officials (old version) further is not excluded on the ground that it is applied to a situation dealing with war crimes committed by an SS unit. The provision was not intended to protect the German Reich against claims arising from a specific national socialist wrong. Whether in situations at the bottom of which lie arbitrarily race-ideological considerations a different standard has to apply need not be decided here. The events in Distomo are to be classified as a situation formally subject to the international law of war, not characterized by a specific national socialist wrong and therefore not to be allocated to the separately regulated area of compensation for national socialist wrongs. Admittedly, reprisals against the civilian population uninvolved in the fighting often were, in view of their nature and scope, contrary to international law also on the basis of the legal views applicable at the time. As such, however, during World War II they were regarded as permitted also by the Allies … The unlawful excess of reprisals therefore cannot simply be classified as a specifically national socialist wrong, unless specific race-ideological circumstances were the decisive factor. In the present case, however, there were no such special circumstances which prove a sufficiently close connection between the violations of international law suffered by the complainants and NS [national socialist] ideology.

28
cc) There are no decisive objections against the rejection of compensation claims based on unlawful interference similar to expropriation [enteignungsgleicher Eingriff] or to the doctrine of fair compensation for a special sacrifice to the community [Aufopferungsanspruch]. The history of both these concepts shows that the idea of a special sacrifice which finds its expression in Sections 74, 75 of the Introduction to the General State Laws for the Prussian States [Einleitung zum Allgemeinen Landrecht für die preußischen Staaten – EinALR] was developed for situations of everyday administrative acts. According to the relevant German legal order, the basis for claims cannot be applied with regard to war damages … Damages following from the belligerent occupation of another State are no expression of “genuine” administrative law acts, but the consequence of a situation which is to be assessed under international law. In this respect, Article 14 of the Basic Law does not demand that compensation claims are made available for every conceivable form of State action which can lead to a wrong.
29
c) The challenged decisions do not violate Article 3, paragraph 1 of the Basic Law. In particular, they do not violate the general principle of equality inasmuch as it prohibits arbitrariness. A judicial decision is arbitrary if it is not legally justifiable from any conceivable point of view, and one is therefore forced to conclude that it is based on irrelevant considerations … In the present case, the courts dealt in detail with the legal questions raised and ultimately correctly denied claims of the complainants. Nothing indicates a violation of the standards of arbitrariness.
30
In this connection it also is to be borne in mind that with regard to Article 3, paragraph 1 of the Basic Law, the legislator also is not precluded from distinguishing between, on the one hand, a general fate during law, albeit hard and involving violations of international law, and, on the other hand, victims of particularly ideologically motivated measures of persecution by the wrongful national socialist regime (comp. Federal Constitutional Court, Decision of 28 June 2004, 2 BvR 1379/01, “Italian military internees”). It therefore does not contravene the principle of equality if persecuted persons within the meaning of Section 1, paragraph 1 of the Federal Law for the Compensation of the Victims of National Socialist Persecution [Bundesentschädigungsgesetz – BEG] as well as persons subjected to forced labour eligible for payments according to Section 11, paragraph 1 of the Law on the Creation of a Foundation “Remembrance, Responsibility and Future” [Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” – EVZStiftG] are entitled to compensation, while the complainants are not included in the group of entitled persons. Furthermore, by making reparations in general and by paying compensation on the basis of bilateral agreements in particular, the Federal Republic of Germany has faced up to its responsibility under international law. Although reparation of human suffering by financial means can as a principle only ever be inadequate, an attempt has thereby – and by means of international and European cooperation – been made to create a situation more in keeping with international law (comp. Federal Constitutional Court, Decision of 26 October 2004, 2 BvR 955/00, 1038/01, “East German expropriation case”). This connection finds its expression also in the conclusion of the Treaty on the Final Settlement With Respect to Germany (Two-plus-Four-Treaty) [Vertrag über die abschließende Regelung in bezug auf Deutschland (Zwei-plus-Vier-Vertrag)], which Germany concluded with the understanding that there had been final settlement of the question of reparations. 
Germany, Federal Constitutional Court (Bundesverfassungsgericht), Distomo case, Decision, 15 February 2006, §§ 1–4, 12–26 and 28–30.

In the Bridge of Varvarin case, several nationals of the former Yugoslavia filed compensation claims against the Federal Republic of Germany in consequence of a NATO air strike against a bridge in the Serbian town of Varvarin in 1999. In 2003, Germany’s Regional Court of Bonn held:
1. The application is dismissed.
Facts

9
Between 24 March and 10 June 1999, air operations were conducted in Yugoslavia, with the participation of German armed forces.
10
German planes participated in the air operation “Allied Force” with so-called RECCE and ECR tornado planes, which provided air reconnaissance and escort.
11
On Sunday, 30 May 1999, in the town of [Varvarin], there was a market held on the main street leading from the bridge to the town …, as on every Sunday between 8 a.m. and about 4 p.m. … Around noon, there were approximately 3,000 to 3,500 persons in the area of the church and the market.
12
At that time, NATO fighter planes attacked the town of [Varvarin], flying at low altitude. Overall, four rockets were launched. The applicants all were harmed by that attack or are the legal successors of persons lethally injured.
13
The fighter planes did not belong to the respondent; it is contested between the parties whether German planes supported this mission.

16
The applicants are of the opinion that the respondent is liable for the consequences of the attack by NATO armed forces against the town of [Varvarin].

99
The respondent moves
100
that the application be dismissed.

Grounds

109
II.
The application … is unfounded.
110
The applicants have no compensation claim for material or immaterial damages against the respondent.
111
The claims raised have a legal basis neither in international law nor in German law on State liability.
112
Therefore, first, a further clarification of the facts was not necessary. Second, it did not need to be decided whether and to what extent the applicants’ submission justifies the assumption of a violation by the respondent against the principles of international humanitarian law or a violation of duties giving rise to a reparation obligation.
113
1. The applicants have no compensation claim for material or immaterial damages against the respondent based on a wrongful act under international law.
114
Such a claim neither arises directly from international law nor in conjunction with Article 25 of the Basic Law of the Federal Republic of Germany.
115
a) There are no norms of international law which would, as a consequence of the NATO attack of 30 May 1999, give the applicants as individuals a compensation claim for material or immaterial damages, enforceable against the respondent. This alone already prevents the success of the application.
116
The traditional conception of international law as inter-State law does not conceive the individual as a subject of international law, but only grants him indirect international protection: in the case of international wrongful acts in the form of actions against foreign nationals it is not the individual concerned himself but his home State which has a claim. By means of diplomatic protection the State asserts its own right to respect for international law in the person of its national. The individual is connected to international law only via the “medium” of the State, without himself being a subject of it …
117
This mediatization of the individual via the State in principle still applies. The individual therefore in principle can demand neither the determination of a wrong nor compensation for the wrong.
118
However, with the codification of the international protection of human rights the mediatization of the human being via the State has undergone changes: insofar as States create international norms to that effect, they can grant or allocate specific rights or obligations to the individual, and thereby give him a status as partial subject of international law – in relation to the specific content regulated and the States participating in the particular case. If States in the protective treaty law systems created by them offer, in addition, also an international law procedure to the individual in which he can enforce the rights attributed to him directly vis-à-vis a State, then a real international law entitlement of the individual exists … If this is not the case, the treaty law regulation is a mere benefit to the individual, which can arise as a reflex from the rights and obligations of the State and does not give the individual rights enforceable against another State …
119
An important penetration of the mediatization of the individual via the State is the [1950 European] Convention for the Protection of Human Rights and Fundamental Freedoms. It expressly grants various rights to the individual, in particular the right to life (Article 2 of the European Convention), provides an enforceable right to compensation of the individual in view of specific violations (Article 5, paragraph 5 of the European Convention), and with Article 34 of the European Convention further gives the individual the possibility to appeal to the European Court of Human Rights. In the present case, the applicants cannot invoke this Convention vis-à-vis the respondent, since they were not within the jurisdiction of the respondent (see in this respect also the decision of the European Court of Human Rights of 12 December 2001 …). This is also the view of the applicants.
120
There is no international law regulation comparable to the human rights conventions which would give the individual a compensation claim for material or immaterial damages, enforceable against another State, for the consequences of an armed conflict like the one in question here. There is no protective treaty system which would give the applicants corresponding individual rights and would offer a procedure for their enforcement.
121
The provisions of the [Hague] Convention respecting the Laws and Customs of War on Land of 18 October 1907 … “do not apply except between contracting Powers” (Article 2 of the Hague Convention). Article 3 of the Hague Convention provides a liability to pay compensation only of the “belligerent party” (vis-à-vis the other belligerent party) (comp. also Federal Court of Justice, Judgement of 26 June 2003, III ZR 245/98, “Distomo case”).
122
In the Geneva Convention relative to the Protection of Civilian Persons in Times of War of 12 August 1949 (Geneva Convention IV), raised by the applicants, likewise only the “High Contracting Parties”, in Article 1, undertake to respect and to ensure respect for the Convention. The same applies to Additional Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts, which supplements the Geneva Conventions for the protection of war victims, Article 1, paragraph 3[.] Also here only the High Contracting Parties undertake to respect and ensure respect, Article 1, paragraph 1; individual civilian persons “enjoy protection” (Article 51), but are not given rights of their own. Also the provision on liability laid down in Article 91 does not apply in favour of the individual. Apart from that, neither the Geneva Conventions nor their Additional Protocols offer a procedure which would make it possible for the individual to enforce potential individual claims.

124
b) Also in conjunction with Article 25 of the Basic Law of the Federal Republic of Germany the applications do not have a claim under international law of their own.
125
It is true, according to that constitutional law provision, that the general rules of international law are an “integral part of federal law” and “directly create rights and duties for the inhabitants of the federal territory”. However, international law relevant here – as outlined above under a) – does not give claims to the individual person and therefore offers no basis for individual claims.
126
2. The applicants also have no claims against the respondent on the basis of German law on State liability.
127
It is true, the basic international law principle of diplomatic protection does indeed not preclude a State’s domestic law from granting a claim to an injured individual outside international law obligations, in addition to the international law claims of the individual’s home State (Federal Constitutional Court l.c., Federal Court of Justice, Judgement of 26 June 2003).
128
However, also according to the current legal situation, German law does not grant such a claim. Also insofar as a basis for a claim already does not exist here.
129
The applicants cannot base compensation claims on the Basic Rights alone, inter alia because these guarantees do not provide a compensation claim as a legal consequence. It is true, in particular Section 823 of the Civil Code, raised by the applicants, and also the potential legal bases under German law on liability of the State are indeed provisions giving rise to claims. However, Section 823 of the Civil Code is already not applicable if, like in the present case, only a specific act of an official could be considered as a reason for liability … German law on the liability of the State does not apply in cases of armed conflicts. It is eclipsed by the provisions of the international law of war. Armed conflicts are still … to be seen as a state of exception under international law, which to a large extent suspends the legal order applicable in peace time. Responsibility for beginning the conflict and the consequences of the use of force are generally to be regulated on the level of international law. The potential liability of a State under international law for damages caused comprises also the liability for the acts of all persons belonging to that State.
130
The regulation of the consequences of armed conflicts on the national level rather would require – like under international law – the codification of specific compensatory norms …

132
Therefore, neither German law on breach of official duty (Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law) nor the legal doctrine of fair compensation for a special sacrifice to the community [Rechtsinstitut des allgemeinen Aufopferungsanspruchs] give rise to individual claims against the respondent by individual persons injured in the course of armed conflicts abroad. 
Germany, Regional Court of Bonn, Bridge of Varvarin case, Judgment, 10 December 2003, §§ 9–13, 16, 99–100, 109–122, 124–130 and 132.

The appeal filed by the applicants against the judgement of the Regional Court of Bonn of 10 December 2003 … is dismissed.

75
2. Claims based on international law
76
Insofar as the applicants … base their claims directly on international (humanitarian) law, in particular on Article 3 of the Hague Convention … and Article 91 of the Additional Protocol to the Geneva Conventions – AP I –, always in conjunction with the provisions of international humanitarian law serving the protection of civilians, and partly also in conjunction with Article 25 of the Basic Law of the Federal Republic of Germany, reference can be made to the explanations, correct in this respect, in the appealed judgement. It is (still, at least) the predominant view in international law, and has been recently stated by the Federal Constitutional Court with regard to the currently predominant view in the Federal Republic (most recently in the decision of 28 June 2004, 2 BvR 1379/01, “Italian military internees”; in this sense, for the time of World War II, also the Federal Court of Justice in its judgement of 26 June 2003, III ZR 245/98, “Distomo case”), that the traditional conception of international law as inter-State law conceives the individual not as a subject of international law, but only grants him indirect international protection. In the case of international wrongful acts through actions against foreign nationals it is not the individual concerned himself, but only his home State which has a claim. By means of diplomatic protection the State asserts its own right to respect for international law in the person of its national. In its most recent decision on this question (of 28 June 2004, 2 BvR 1379/01, “Italian military internees”), the Federal Constitutional Court expressly stated that Article 3 of the Hague Convention generally does not establish an individual compensation claim, but only codifies the general basic rule of international law regarding a liability to pay compensation between the States party; this claim for compensation, however, exists only in the international law relation between the States concerned. This basic rule also applies to the comparable provision of Article 91 AP I.
77
In addition, in a decision of 13 May 1996 [BVerfGE 94, 315], the Federal Constitutional Court explained that international law, in the more recent development of an extended protection of human rights, indeed may grant own rights to the individual, and that protective systems had been developed under treaty law by which the individual can also himself assert his claim. Such a protective system under treaty law, however, does not exist as regards Article 3 of the Hague Convention and Article 91 AP I, raised here as basis of claims. Insofar as direct claims of the individual have been established in the course of the more recent development, for example within the framework of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is, in correct recognition of the legal situation, undisputed between the parties that the European Convention does not apply with regard to the NATO air strike in question here, as held by the European Court of Human Rights is in the “Bankovic” decision. There are therefore no direct claims based on international (humanitarian) law.
78
3. Claims based on national law
79
a) Claims based on Basic Rights
80
… [A]ccording to the general view, the Basic Rights themselves are no basis for claims – also not in the case of violations of the Basic Rights. Rather, they are first of all defensive rights against the State, which, however, independent of that, can in manifold ways have effect also within concrete bases for claims through the valuations expressed in them. Such a concrete norm, establishing a claim, is however necessary to give rise to a claim; directly on the basis of Basic Rights alone this is not the case …
81
b) Claims based on Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law
82
Ultimately, there are also no claims based on breach of official duty.
83
aa) Applicability of civil law on liability of the State
84
In this respect, first of all, it is to be noted that individual civil law compensation claims of injured persons based on domestic law in parallel to a potential international law claim of their home State are not excluded. Contrary to the principle of exclusivity of international law in the sense of absorption of individual claims in the inter-State reparation claims, contended by a part of the literature …, the case law now to be seen as firm (Federal Constitutional Court, 28 June 2004, 2 BvR 1379/01, “Italian military internees”; Federal Constitutional Court, BVerfgE 94, 315, [13 May 1996]; Federal Court of Justice, judgement of 26 June 2003, III ZR 245/98, “Distomo case”) has expressly underlined that there is no general rule of international law according to which claims based on domestic law, stemming from war events, cannot be enforced individually, but only on the inter-State level. In its decision BVerfgE 94, 315, the Federal Constitutional Court stressed that the parallelism of claims between international law and domestic law is given a fortiori, if a domestic claim is deduced not from a specific law on war consequences but on a general public law restitution claim, because such a restitution claim has no specific connection whatsoever with the regulation of war consequences.
85
In its most recent decision [of 28 June 2004], the Federal Constitutional Court additionally explained that this lack of preclusion does not allow the inference of a rule or assumption according to which a State violating international law must grant claims to injured persons on the basis of its domestic law. It is rather the concrete content of the domestic legal order, in the present case Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law, on the basis of which the requirements of a claim must be assessed.
86
In this respect it is further to be noted that this general state liability claim is not excluded just because in the present case the decisive events took place not in the Federal Republic of Germany, but abroad. [This] Senate … and also the Federal Court of Justice (judgement of 26 June 2003, III ZR 245/98, “Distomo case”) have left no doubt in comparable cases that German law is to be applied also as regards breaches of official duty committed abroad, namely the relevant Section 839 of the Civil Code, in the cases quoted in conjunction with the then relevant Article 131 of the Weimar Constitution, today in conjunction with Article 34 of the Basic Law of the Federal Republic of Germany.
87
The decisive question is whether Section 839 of the Civil Code does not apply to the events in question here because they took place in the context of an armed conflict. With regard to the time up until the end of World War II, the Federal Court of Justice has stated in its “Distomo” decision ([26 June 2003]) that, according to the predominant view at that time, war was seen as a state of exception under international law, in its essence geared to the use of force, and to a large extent suspending the legal order applicable in peace time. Responsibility for beginning a war and for the consequences of the collective use of force inevitably connected with it, as well as liability for individual war crimes by persons belonging to the armed powers, was regulated on the level of the belligerent States. Based on this view of war as, first of all, a collective act of force, seen as a “relation from State to State”, at that time the idea was alien that due to wrongful acts of its armed forces abroad a belligerent State could become directly liable to pay compensation (also) vis-à-vis the victims.
88
The Federal Court of Justice expressly left open whether this view is still correct in the framework of today’s law on liability for breach of official duty. In view of the Senate this view is – at least in this absolute form – obsolete in view of today’s acts of war or armed conflicts and can no longer be justified in view of the development of international and domestic law in the meantime. To the details:
89
It is certainly still correct also today both as regards international public law and as regards international and domestic private/civil law that wars or armed conflicts are to be seen as states of exception, to which special provisions apply. The place of the provisions applicable in times of peace is taken by the “ius in bello” in its manifold manifestations, partly regulated by international law, partly by domestic law, which to a large extent suspends the legal order normally applicable.
90
It need not be decided how far this suspensive effect reaches in general and which areas are concerned; of interest here is alone the question of liability of the State, as laid down in Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law. The idea codified in them, of liability of the State for a “wrong” done by public act to an individual owner of rights – not to other States – cannot be seen as completely suspended, for this would be contrary in a blatant manner to our modern understanding of State acts. Also in times of war or when participating in armed conflicts the State is bound by the law, especially international law, in particular as it has entered that obligation in a special manner by treaty law relations or by recognizing that law. To respect the “ius in bello” is an obligation of the State, for it exactly has the purpose to become effective instead of the national and international legal orders normally applicable, and demands application exactly to that purpose.
91
Insofar as these regulations demand application in times of war, they also require sanctions in order to become effective, for otherwise they would risk being void. Insofar as they are international law regulations, there have been and there are claims and procedures to that purpose, which, however, according to the traditional view only, were of an inter-State character and in which the individual human being participated only via the means of diplomatic protection. This view, however, due to the development over time, is today no longer tenable.
92
An essential difference first of all in the domestic law is the fact that, since the foundation of the Federal Republic of Germany, all acts of the State are to be seen in the light of the Basic Law. The order of values incorporated in the Basic Law, which with regard to the individual has found its expression in particular within the Basic Rights, has given first priority to the dignity and protection of the human being, gives to the individual as such a position different from that in the time before the validity of the Basic Law. Individual claims – defensive claims and claims for benefits – of the individual vis-à-vis the State find their expression in countless parts of our whole current legal order and are shaped by the system of values of the Basic Law. It is therefore out of the question to assume a complete suspension of Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law in times of war or as regards military actions, since this is the general claim for damages against the State and the central regulation of liability of the State towards the individual injured by a public act. A suspension of the regulations would mean – except for specific regulations by law, which however exactly do not exist for cases such as the one in question here – to negate any claim of the individual human being for any wrongful public act, no matter how grave, to refuse any individual granting of rights, and to refer him to the (insecure) means of diplomatic protection. This is not consistent with the idea of the human being and the claim to grant rights according to the Basic Law.
93
The question therefore can only be how far the protection of Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law reaches during war or in the context of an armed conflict, and not whether it is to be granted in principle …
94
This view is supported in particular also by the principle recognized by the Federal Constitutional Court, described above, of the parallelism of, on the one hand, the international law claims held alone by the home State and, on the other hand, the possibility to grant domestic individual claims; the Federal Constitutional Court recognizes that principle not only in relation to specific regulations, but considers it also in the form of a general restitution claim. If one supports such a parallelism of claims, but excludes as generally suspended the applicability of the general law on State liability when at the same time a specific regulation is lacking, one does not do justice to the concrete content of the domestic legal order, regarded as decisive by the Federal Constitutional Court, and the recognized parallelism of claims remains empty. In the light of the value judgement of the Basic Law, such an exclusion, for which in any case there are no indications in the wording of Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law and which cannot be deduced from systematic or historic considerations either, therefore does not seem possible (any more).
95
This is true in particular in view of the multitude of international law regulations having come into existence since World War II, which give the protection of the human being an importance as high as that given by the Basic Law.
96
It is to be noted that since the end of World War II a change in the international humanitarian law (of war) is to be registered, to the effect that, more and more, the rights and the protection of the individual come to the fore. Numerous conventions have been concluded which expressly have the protection of the individual, in particular also of the civilian person, as their object, to which the Federal Republic of Germany has acceded, and which are applicable law. Apart from newer developments now also in the area of criminal law with the creation of the International Crimes Code and the establishing of an International Criminal Court, mention must be made in particular of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, its Additional Protocol of 1977 and the European Convention on Human Rights of 1950, the last expressly and decisively taking into account the protection of the individual by also providing individual procedures for the individual rights laid down in it. Such expressly granted individual rights and individual procedures may not follow from the further international humanitarian law. But there can be no serious doubt that its provisions, which e.g. in Article 48 et seq. AP I repeatedly refer to “individual civilians”, do not only abstractly serve the protection of the civilian population as a whole, but also concretely serve the protection of the individual. The ongoing tendency to underline and to strengthen the protection of the individual in the area of his fundamental human rights cannot be mistaken. In its most recent decision (28 June 2004, 2 BvR 1379/01, “Italian military internees), the Federal Constitutional Court described this protection of the individual in relation to the Hague Regulations (stemming already from 1907) as the concerned persons’ “primary right to respect for the prohibitions of international humanitarian law”, which – this is how the decision is to be understood –, unlike the secondary right to compensation resulting from it, does not exist in the international law relation between the States concerned, but which the individual has vis-à-vis the acting State.
97
The Federal Republic, by international treaty, has assumed the obligation to respect and observe these rights, they bind the State as directly applicable law under Article 25 of the Basic Law. If this is so, the secondary rights to compensation resulting from them and laid down in Article 3 of the Hague Convention and Article 91 of AP I may exist only between States, but within the framework of parallelism of claims, the applicability of Section 839 in conjunction with Article 34 of the Basic Law cannot be negated. If the primary right to respect for international humanitarian law is accepted, it contradicts the order of values more recently arisen on the domestic and international level – which makes the protection of human beings and respecting that protection a central duty not only in the interest of society but also for the benefit of the individual human being – not to give a corresponding, own compensation claim to a person concerned in case of a violation, if the applicable requirements of the claim are fulfilled. To generally negate such an individual claim due to suspension of the applicable liability norm, and to refer the individual to the means of diplomatic protection, would often make the right of the individual to respect for international humanitarian law go void, since the violation would remain without sanction. Especially the vanquished State will often not have a real possibility, and will often also not be willing, to effectively raise violations of international humanitarian law against its nationals by means of diplomatic protection vis-à-vis the victorious State.
98
The Senate therefore, also in the case of armed conflicts, regards the general legal provisions on State liability as generally applicable, at least insofar as the State thereby violates, in a manner inconsistent with international law, the primary right of the individual to respect of international humanitarian law.
99
bb) The requirements of Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law are not fulfilled
100
The question how far the protection of the State liability claim under Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law goes need not be answered in general. It is self-evident that it cannot cover such areas of the legal order which are suspended in consequence of the armed conflict. It is also self-evident that it must at least in principle cover those areas which are instead regulated by “ius in bello”, for these regulations then are the standard against which acts of a State are measured. How far the scope of protection of Section 839 Civil Code in conjunction with Article 34 of the Basic Law goes need not be decided in the present case. Indeed, at least such international law rules applicable in the framework of “ius in bello” would seem to come under a claim for breach of official duty which give concrete rights to the individual and are meant to grant him a right to their respect and observance vis-à-vis acts of a State, e.g. in the case of acts violating international law, having the character of war crimes, which in the sense of the law on State liability would appear to be an abuse of office. But such acts or other acts attributable to the respondent under liability law cannot be found here.
101
It is undisputed that it was not the respondent who attacked the bridge. An attribution under liability law is not possible just because the respondent participated in the NATO air operations as such. Such a generalized liability as joint and several debtors for the case that it cannot be established which NATO participant has caused a damage may not be alien to NATO law – compare Article VIII, paragraph 5, letter e, lit. iii of the NATO status of forces agreement, not applicable here. In the context of an assessment under German law on liability for breach of official duty, however, liability can only be assumed if a concrete attribution of damages is possible.
102
In the present case, own damaging actions lacking, such an attribution would only be possible if the respondent were at least responsible according to Section 830 of the Civil Code, be it as a co-perpetrator or as an aider/assistant; for this it would, however, be additionally required that the acts of the respondent which give rise to the capacity as co-perpetrator or aider/assistant would be reproachable as a breach of official duty.
103
Liability of the respondent could be considered in view of the applicants’ allegation that the respondent had insofar participated in the air strike against the bridge as she gave reconnaissance and escort/air space protection support …
104
Further clarification of the facts is not required, since, even if during their (potential) flight over Kosovo the measures related to air space protection also concerned the planes which destroyed the bridge, a reproachable breach of an official duty cannot be found. This would have been supporting aid/assistance which would only be reproachable as culpable aid/assistance to a reproachable act – the destruction of the bridge –, for which positive knowledge of the reproachability of the supported act, or at least negligent lack of knowledge, would be necessary. Nothing has been submitted or is otherwise apparent regarding such knowledge or negligent lack of knowledge of the reproachability of the supported act.
105
The reproachability of the destruction of the bridge with the consequent victims could result from the concrete circumstances of the attack being in violation of international law or even having the character of war crimes. Whether this was the case here, as submitted by the applicants in particular with regard to Article 48 et seq. AP I – which for hostilities contain provisions on the protection of the civilian population or also individual civilian persons – need, however, not be decided. Nothing indicates that the respondent or the authorities or persons acting for her before or at the time of the attack knew about its circumstances or did not know them due to negligence; it has not even been submitted or is otherwise apparent that the respondent knew at all that the bridge of Varvarin was to be attacked that day.
106
According to the principle of “need to know” described in detail by the respondent, which applied within NATO for all actions during the air operations against the Federal Republic of Yugoslavia, each member State had only that knowledge of the individual operations which it needed to fulfil its functions … Attribution of the consequences of the attack under liability law therefore is prevented since the respondent had no knowledge of the potential reproachability of the concrete realization of the attack, or did not negligently lack knowledge of it.
107
Liability of the respondent could finally be considered insofar as the bridge of Varvarin as such was at all included in the target lists for the air operations. The applicants allege that in the context of the NATO bodies, the respondent participating, every single target had been determined, with each participating NATO partner having had the right to veto the determination of a particular target; in case of a veto, such a target would not have been included in the planning.
108
Even if, in favour of the applicants, one acts on the assumption of this description and presumes such a veto right of the respondent at the time, liability of the respondent is nevertheless prevented.

111
… it is to be noted that with regard to decisions of the kind in question here the respondent has a wide margin of evaluation and discretion, which, in principle is not justiciable, except when the decision is obviously arbitrary or obviously in violation of international law and cannot be understood under any reasonable point of view. There is no question of that here.
112
In the case of armed conflicts or wars, bridges like the one in Varvarin leading across the river Morava are from an abstract point of view first of all always potential military objectives, be it on the basis of strategic or tactical considerations. Already because of that the omission of a veto by the respondent against the inclusion in target lists cannot be seen as obviously arbitrary and untenable under any point of view …
113
The inclusion in target lists or the omission of a veto also was not obviously in violation of international law. It need not be decided … whether the actual realization of the destruction was consistent with international law; the mere inclusion in a target list certainly did not contravene international law (of war) in the obvious way required, since at least generally the bridge was to be seen as also a military objective. The concrete circumstances of a potential attack against the bridge apparently were not discussed during the selection of targets; at least the applicants did not allege that and it would also contradict the principle of “need to know”. When agreeing to the selection of targets, the respondent generally was allowed to trust, facts indicating something else lacking, that a potential attack by NATO, bound by “ius in bello”, or by the equally bound member States, would be realized in line with international law.
114
That Varvarin or its bridge was not, contrary to the view of the applicants, a “non-defended locality” within the meaning of Article 59 AP I follows simply from paragraph 2 et seq. of that provision. It is therefore not relevant whether Article 59 AP I protects individual rights. 
Germany, Higher Regional Court of Cologne, Bridge of Varvarin case, Judgment, 28 July 2005, §§ 75–108 and 111–114.

The revision filed by the applicants against the judgement of the Seventh Civil Law Senate of the Higher Regional Court of Cologne of 28 July 2005 is dismissed.

Grounds
4
The revision is unfounded. The Higher Regional Court rightly denied the claims.
I.
5
The Higher Regional Court (as did already the Regional Court) correctly noted that an – assumed – international wrongful act to the detriment of the applicants or their relatives in connection with the attack against the Varvarin bridge would not lead to a direct compensation claim for material or immaterial damages of the applicants against the respondent under international law.
6
1. a) The traditional conception of international law as an inter-State law did not conceive the individual as a subject of international law, but only granted him indirect international protection. In the case of international wrongful acts by actions against foreign nationals it was not the individual concerned himself who had a claim, but his home State. By means of diplomatic protection the State asserted its own right to respect for international law in the person of its national (Federal Court of Justice, judgement of 26 June 2003, III ZR 245/98, “Distomo case”) The individual was “mediatized” via the State; i.e. all international law relations were exclusively a matter of the States, which insofar conveyed the interests also of individuals. The individual could therefore demand neither the determination of a wrong nor compensation for it …
7
However, in connection with the development and codification of the international protection of human rights after World War II, the mediatization of the individual via the State in international law has undergone corrections. This development demands the recognition of the individual at least as a partial subject of international law (Federal Constitutional Court, decision of 15 February 2006, 2 BvR 1476/03, “Distomo case”, …). Since then, an ever tighter net of human rights guarantees has developed, together with the more and more universally accepted concept of human dignity and its protection as preceding the State … Human rights are therefore to be seen as genuinely benefiting the individual. Also, specific norms of the law of conflict related to the person confirm that international law can directly give rights and obligations also to individual persons … This corresponds with the circumstance that the individual person can also increasingly be called upon individually – for example by international criminal law – and has to take responsibility for his actions under international law.
8
b) But this does not mean that every human rights rule protected by treaty actually also gives individual rights. Some conventions merely lay down protective obligations of the State in the area of human rights, without at the same time granting individual rights … In particular, the rule still applies according to which – independent of a primary right of the persons concerned to respect for international law – only the home State is entitled to secondary compensation claims based on international wrongful acts of a State against foreign nationals (comp. for Article 3 of the Hague Convention, Federal Constitutional Court, decision of 26 October 2004, BVerfgE 112, 1, 32 et seq.; Federal Constitutional Court, decision of 28 June 2004, 2 BvR 1379/01, “Italian military detainees”; Federal Constitutional Court, decision of 15 February 2006, 2 BvR 1476/03, “Distomo”). With respect to every international treaty benefiting individuals, it is therefore necessary to assess by means of interpretation whether and to what extent that treaty is meant to give rise to individual rights, i.e. whether it is the case of an independent benefit (a subjective right) – as the case may be also a right to compensation – or whether it is only a factual benefit, a legal reflex …
9
2. According to these principles, the applicants can base claims for compensation on the international law level neither on Article 3 of the Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Hague Convention), nor on Article 91 of the First Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (…, in the following: AP I). Further bases of claims – on the international law level – are not apparent.
10
a) Article 3 of the Hague Convention, which originally – due to the then predominant legal view on the mediatization of the individual – without a doubt was only of an inter-State character (comp. Federal Court of Justice, judgement of 26 June 2003, III ZR 245/98, “Distomo case”), does not give rise to a direct individual compensation claim for violations of the international law of war, even if taking into account the change of view of international law regarding the rights of the individual in the meantime (Federal Constitutional Court, decision of 26 October 2004, BVerfgE 112, 1, 32 et seq.; Federal Constitutional Court, decision of 15 February 2006, 2 BvR 1476/03, “Distomo case”). Indeed, the drafting history of the norm shows that it is intended to protect the individual and is therefore of a nature indirectly protecting human rights. However, it does not follow from this that the provision is the basis of a direct, originally international law compensation claim of the concerned individual vis-à-vis the State. According to the case law of the Federal Constitutional Court, it is still only the home State which is entitled to secondary compensation claims due to international wrongful acts of a State against foreign nationals, irrespective of the development on the level of human rights protection, which has led to the recognition of the individual as a partial subject of international law as well as to the establishing of individual complaint procedures under treaty law (Federal Constitutional Court, decision of 28 June 2004, 2 BvR 1379/01, “Italian military detainees”; Federal Constitutional Court, decision of 15 February 2006, 2 BvR 1476/03, “Distomo case”).
11
b) Also in relation to Article 91 of AP I, the legal situation ultimately cannot be judged differently. It may well be that the provisions of the law of war in the Additional Protocols of 1977 for the protection of the civilian population potentially of relevance here – in particular Article 51 of AP I – give rise to subjective rights of the concerned individual (civilian) persons in the sense of a (primary) right to respect for the prohibitions of international humanitarian law (comp. for Article 3 Hague Convention, Federal Constitutional Court, decision of 28 June 2004, 2 BvR 1379/01, “Italian military detainees”; …). In any case, an individual (secondary) reparation claim in the event of the violation of these prohibitions does not follow from it, according to the wording of Article 91 of AP I, its origin and its treatment in international law practice so far.
12
aa) (1) According to Article 91, sentence 1 of AP I “[a] Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation.” “It shall be responsible for all acts committed by persons forming part of its armed forces” (sentence 2). This is almost exactly the wording of Article 3 of the Hague Convention. It is therefore the general view that Article 91 of AP I (merely) confirms the legal situation to be applied already according to Article 3 of the Hague Convention and extends it to the four Geneva (Red Cross) Conventions and the Additional Protocol, that therefore Article 91 of AP I has the same meaning as Article 3 of the Hague Convention … The travaux préparatoires of the conferences drafting the Additional Protocols also contain nothing which would indicate that the contracting parties intended to a give a meaning to Article 91 of AP I going beyond that of Article 3 of the Hague Convention … If, at the time, the contracting parties had wanted to establish individual compensation claims for the area concerned, it would have been possible to take guidance from, for example, Article 5, paragraph 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), in force at the time of the negotiations on the Additional Protocols, which provides an express compensation claim of persons injured in their human rights; nothing indicates that something similar was intended with regard to the responsibility of States for violations of international humanitarian law during armed conflicts.
13
(2) That with regard to the Geneva Additional Protocols, according to the principles of State responsibility, only inter-State and no direct individual reparation claims were considered is generally affirmed, inter alia, by the circumstance that also the UN International Law Commission’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts in Article 42 et seq. only provide for the entitlement of the injured State to invoke the responsibility of another State, and does not provide for individual claims of injured individual persons. These provisions may contain binding international law only insofar as they codify customary international law … Nevertheless, they are an indication that a conviction to the contrary has not yet formed. Claims related to torts under international law rather are still to be seen as giving rise to compensation between States … In particular also because of the speciality of international humanitarian law in relation to general human rights …, a different interpretation of Article 91 of AP I cannot be deduced just from the circumstance that there are provisions which in certain cases give persons whose human rights have been injured an individual right of complaint against the violating State (see for example Article 34 European Convention).
14
bb) Also, the Commentary on the Additional Protocols to the Geneva Conventions (de Preux, in: Sandoz/Swinarski/Zimmerman, Commentary on the Additional Protocols [1987], MN. 3657) comes with regard to Article 91 of AP I to the conclusion that, apart from special exceptional cases, [“]persons with a foreign nationality who have been wronged by the unlawful conduct of a Party to the conflict should address themselves to their own government, which will submit their complaints to the Party or Parties which committed the violation[“]. Insofar as de Preux … at the same time points to a “tendency” since 1945 to [“]recognize the exercise of rights by individuals[“], this contains – like similar references and requests in international law literature … – for the area of international humanitarian law of war not more than the expression of a future ideal, so far in any case not yet implemented in the practice of international law. In this area, the general principle of tort law that the violation of a primary duty of behaviour generally gives rise to a secondary right of the owner of the violated right …, is factually recognized only in a limited way.

16
c) An active legitimation of the applicants to an international law compensation claim against the respondent due to a violation of international humanitarian law of war, lacking according to all the above, here also cannot be deduced (indirectly) from Article 25, sentence 2, second clause of the Basic Law, according to which the general rules of international law directly create rights and duties for the inhabitants of the federal territory. According to that, an individual’s primary claim under international law (see b) above) may for inhabitants of the federal territory, as the case may be, become the basis also of a compensation claim against the Federal Republic as violating State… In the present case such a basis for a claim in any case does not apply for the applicants, because Article 25, sentence 2, second clause of the Basic Law does not relate to foreigners abroad …

18
4. Since already due to the lack of an active legitimation of the applicants there is no international law obligation of the respondent vis-à-vis the applicants for potential unlawful acts in connection with the attack against the Varvarin bridge, it also need not be asked … whether, and if so under which conditions, a (co-)responsibility of the respondent for an internationally wrongful act, independent of unlawful acts or omissions of its own public agents, is to be considered simply on the basis of the respondent’s participation in the NATO mission in the Kosovo conflict …

II.
19
The Higher Regional Court also rightly denied a compensation claim of the applicants based on domestic (German) law, which would not already be precluded from the point of view of exclusivity of international law (… Federal Court of Justice, judgement of 26 June 2003, III ZR 245/98, “Distomo case”).
20
Only Section 839 of the Civil Code in conjunction with Article 34 of the Basic Law can be considered as the basis of such a claim. In this respect, this Senate held that, according to the understanding of the law on breach of official duty until the end of World War II, military actions of war abroad were excluded from claims based on breach of official duty under Section 839 Civil Code in conjunction with Article 131 of the Weimar Constitution (Federal Court of Justice, judgement of 26 June 2003, III ZR 245/98, “Distomo case”). This Senate leaves undecided whether – as answered in the negative by the Higher Regional Court – this view is to be upheld also for the time after the coming into force of the Basic Law of the Federal Republic of Germany.
A compensation claim of the applicants against the respondent on this basis is in any case prevented by the circumstance that in connection with the attack against the Varvarin bridge during the Kosovo conflict no breaches of official duty by German soldiers or authorities in the sense of concrete (culpable) violations of the rules of international humanitarian law (of war) for the protection of the civilian population are present.

22
2. [The explanations of the Higher Regional Court] – assuming that liability of the respondent under German law on liability for breach of official duty were possible at all – hold out against legal review.
23
a) aa) As regards the – not existing – direct support by the respondent’s armed forces for the attack on the Varvarin bridge, the [applicants] without success criticize the explanations of the Higher Regional Court of Cologne as contradictory: It is absolutely possible … that the way the respondent’s forces shielded the air space was indeed a support to the attack on the Varvarin bridge as such, that, however, the German soldiers or authorities did not know details of the air strike as such. Contrary to the view of the application for revision, the circumstance that according to the principle “need to know”… they had no information, cannot be held against them.
24
bb) Also the further criticism of the application for revision that it had been overlooked that under liability law, in cases where a damage is due to several causes generated by different persons, it is irrelevant for joint and several liability whether specific causes are more significant than others does not lead to a different assessment. Since, according to the facts to be applied for the revision, the members of the German armed forces at the respective day of deployment had no information on the details of the objectives of the planes whose air space they protected, and especially no information on the nature of the attack against the Varvarin bridge, they did not have the intent required for attributing the attack to them as co-perpetrator or aider/assistant (Section 830 of the Civil Code). Such intent would have required … that the German authorities knew – or at least approvingly accepted – that an attack against the civilian population or at least an “indiscriminate attack” (comp. Article 51, paragraph 5, letter b of AP I) would take place. No facts to this effect have been established; also the applicants have submitted nothing to this effect for evidence.
25
b) The application for revision without success criticizes the assessment of the Higher Regional Court that the respondent’s participation – alleged by the applicants and contested by the respondent – in the inclusion of the Varvarin bridge in a NATO air operations target list also cannot be qualified as breaching official duty, since such a decision was within the limits of a wide, insofar not justiciable, margin of appreciation of the military commanding authorities, and was in particular not obviously in violation of international law and not completely untenable.
26
aa) … The application for revision cannot be followed insofar as it opines that such a margin of appreciation cannot exist in relation to the “rules of ius in bello strictly to be respected”. This is not a question on the abstract content of the rules, but on the assessment of the geographical and military situation in concrete application of these rules. The assessment of the Higher Regional Court of Cologne that the limits of the margin of appreciation are transgressed only in cases of complete untenability and obvious violation of international law, is not to be objected to.
27
bb) There are no objections to the way the Higher Regional Court of Cologne as trier of fact has found that this threshold has not been crossed in connection with the respondent’s approval – alleged by the applicants – of the inclusion of the Varvarin bridge in the target list for the NATO operation. This finding seems reasonable already because military objectives (comp. Article 52, paragraph 2, sentence 2 of AP I) traditionally include, inter alia, infrastructure like streets, railroads, bridges and telecommunication installations. From the respondent’s perspective, “in the circumstances ruling at the time” (Article 52, paragraph 2, sentence 2, fin) – the moment of inclusion in the target list –, this could be a sufficient standard of evaluation, even if finally the decision on a military attack could have been taken only under the condition that the destruction of the bridge – at that moment in time – offered a definite military advantage. Without legal mistake, the Higher Regional Court has explained that the respondent, when agreeing to the selection of targets, was allowed to trust that a potential attack would be realized in a way respecting international law.

29
3. Not correct is finally the view of the application for revision that – because the air operation was decided and executed by the NATO member States – compensation claims based on combat operations violating protective rights of the civilian population were to be asserted against any NATO member State, if the injured persons could not find out who was the concrete violator.
30
a) It need not be decided whether and to what extent such considerations would be relevant in the examination of international law compensation claims (between States; see above I.4.). For the compensation claims based on domestic law on liability for breach of official duty (Article 34 Basic Law in conjunction with Section 839 of the Civil Code) which alone – if at all – are under consideration here, an extension of liability under this aspect does not come into question. Already in view of the personal construction of liability for breach of official duty … the State generally is liable only to the extent the acting official himself would be liable (under Section 839 of the Civil Code) if the acceptance of liability by the State (via Article 34 of the Basic Law) did not exist. Liability for breach of official duty can therefore only be caused by culpable wrongdoing of a German official. Official acts of armed forces of other States generally cannot be attributed to the Federal Republic of Germany under the law on breach of official duty. 
Germany, Federal Court of Justice, Bridge of Varvarin case, Judgment, 2 November 2006, §§ 4–14, 16, 18–20, 22–27 and 29–30.

In 2004, in the Italian Military Internees case concerning a constitutional complaint dealing with the exclusion of certain Italian nationals from the scope of application of the German Law on the Creation of a Foundation “Remembrance, Responsibility and Future” of 2 August 2000, Germany’s Federal Constitutional Court held:
The constitutional complaint is not accepted for decision.
Grounds:
1
The constitutional complaint concerns the constitutionality of the exclusion of so-called Italian military internees from the scope of application of the Law on the Creation of a Foundation “Remembrance, Responsibility and Future” … – Foundation Law – and the question whether the Law has violated the property right positions of the complainants Nos. 2 to 943 in an unconstitutional way.
I.
2
1. Complainant No. 2 is an Italian national. In September 1943, he was arrested as an officer of the Italian army by units of the German Wehrmacht. During World War II, Italy was initially an ally of the German Reich. After Mussolini’s fall in September 1943, the new Italian government concluded an armistice with the Allies and declared war on Germany in October 1943. The German Wehrmacht offered Italian soldiers, allies of Germany until the change of fronts, the choice of either continuing the war on the side of Germany or of becoming prisoners of war. Those who, like complainant No. 2, chose detention as prisoners of war, were utilized as labourers for the German war economy.
3
In the summer of 1944, for reasons of foreign policy, the Italian soldiers interned by the German Reich, and in January 1945 also the officers, were released from detention as prisoners of war and were transferred into a “civilian work relationship”. However, the poor working conditions and the camp accommodation largely continued. The Italian military internees, including complainant No. 2, for the most part did not agree to the formal change of status.
4
2. Complainant No. 3 is also an Italian national. In August 1944, he was arrested by soldiers of the German Wehrmacht in the course of reprisals against the Italian civil population, was utilized for forced labour and was ill-treated during it. He is conducting civil proceedings in Italy against the Federal Republic of Germany with the aim of obtaining compensation for tangible and intangible damages for the period of internment and forced labour. The court of first instance denied its competence on account of Germany’s immunity as a State before the Italian courts. The appeal is still pending.
5
3. Complainants Nos. 4 to 943 are, like complainant No. 2, Italian military internees; further information on their individual fates is not submitted.
6
4. Complainant No. 1 is a non-commercial association, representing the interests of the Italian military internees. Complainants Nos. 2 to 943 are members of that association.
7
5. a) In the years 1999 and 2000, negotiations took place between the German Federal Government and the governments of other States which had participated in World War II, concerning compensation for persons utilized for forced labour in German companies and in the public sector. Subsequently, on 2 August 2000, the German legislator adopted the Foundation Law, whereby a foundation with legal capacity was created under public law, named “Remembrance, Responsibility and Future”. The aim of the foundation is to provide, through partner organizations, financial means to grant benefits to former forced labourers and persons affected by other forms of wrong during the time of national socialism (Section 2 of the Foundation Law). The distribution of funds to the persons entitled is done exclusively by the partner organizations; the foundation itself is neither entitled nor obliged to do so (Section 10 of the Foundation Law). The International Organization for Migration (IOM) in Geneva, a legal entity under international law enjoying immunity, is the partner organization responsible for Italy.
8
b) The group of forced labourers entitled to compensation and other affected persons is further specified in Section 11 paragraph 1 of the Foundation Law. Accordingly, entitled to benefits is a person who
9
1. was detained in a concentration camp within the meaning of Section 42 paragraph 2 of the Federal Compensation Law [Federal Law for the Compensation of the Victims of National Socialist Persecution; Bundesentschädigungsgesetz – BEG] or in another place of detention […] under comparable conditions, and was forced to work,
10
2. was deported from his home country into the territory of the German Reich within the borders of 1937 or into a territory occupied by the German Reich, was forced to work in an industrial enterprise or in the public sector, and was detained under conditions other than those stated in number 1, or was subject to conditions similar to detention or to comparable, particularly poor living conditions.
11
According to Section 11, paragraph 3 of the Foundation Law, detention as a prisoner of war does not establish entitlement to benefits; the explanatory memorandum to the Foundation Law … states in this regard:
12
Prisoners of war utilized for labour generally cannot obtain any benefit therefor, since, according to the rules of international law, prisoners of war can be utilized for labour by the detaining power. Persons released from detention as prisoners of war and transferred to civilian worker status can belong to the group of entitled persons under paragraph 1 if, for the rest, they fulfil the requirements.
13
According to Section 12, paragraph 1 of the Foundation Law, other places of detention within the meaning of Section 11, paragraph 1, no. 1 are characterized by “inhumane conditions of detention, inadequate supplies and absence of medical care”. Depending on the degree to which a person was affected, payments of up to DM 15,000 are made (Section 9 of the Foundation Law).
14
Finally, Section 16 of the Foundation Law provides for an exclusion of claims:
15
(1) Benefits from public funds including social security and from German companies for a national socialist wrong suffered within the meaning of Section 11 can be claimed only under this Law. […]
16
(2) Every entitled person will declare in the course of the application procedure that on receiving a benefit under this Law he […] renounces making any further claims against the public authorities related to forced labour […].
17
6. In August 2001, the Foundation Board adopted a “Guideline on the entitlement to benefits and on the exclusion from benefits of former prisoners of war under the Foundation Law”, coordinated with the Federal Ministry of Finance. It states with regard to Section 11, paragraph 3 of the Foundation Law that
18
A prisoner of war utilized for civilian forced labour is not entitled to benefits if throughout the period of labour he retained the status of prisoner of war. Under the international law of war, the utilization of the labour of prisoners of war is permissible. If therefore the prisoner of war is only de facto used as a civilian worker, but has not been transferred to civilian status by a formal act, there is no entitlement to benefits. […] The Federal Government has commissioned an expert opinion examining whether Italian military internees, utilized for forced labour, were transferred into civilian status in the legal sense. The expert opinion answered this in the negative. The Federal Government has adopted the view of the expert opinion. For the Federal Government, according to the criteria of the Foundation Law, Italian military internees are therefore not entitled to benefits. However, prisoner of war status cannot be held against prisoners of war who were transported to a concentration camp, since in that case specific discrimination and ill-treatment motivated by NS [national socialist] ideology was decisive, and detention in a concentration camp cannot be regarded as a general fate during war.
The expert opinion mentioned is decisively based on the consideration that the status as prisoner of war, giving special protection under international law, cannot be withdrawn unilaterally by the obligated State.

22
7. Neither complainant No. 2 nor complainant No. 3 have applied to the IOM for benefits under the Foundation Law. Complainant No. 3 was, according to his own statements, not in a recognized place of detention within the meaning of Sections 11, paragraph 1, no. 1, 12, paragraph 1 of the Foundation Law …
II.
23
With the constitutional complaint … directly against Section 10, paragraph 1, Section 11, paragraph 3 and Section 16, paragraphs 1 and 2 of the Foundation Law, violations of Article 14 paragraphs 1 and 3, sentence 4 [protection of property], Article 19, paragraph 1, sentence 2, and paragraph 4, Article 104, paragraph 1, and Article 3, paragraph 1 [non-discrimination] of the German Basic Law are alleged.
24
1. Complainants Nos. 2 and 3 allege to have a claim for compensation against the Federal Republic of Germany because of forced labour and treatment suffered during it. This claim allegedly stems from, on the one hand, Section 839 of the German Civil Code in conjunction with Articles 2 and 3 of the [Geneva] Convention relative to the Treatment of Prisoners of War of 27 July 1929 …, and, on the other hand, directly from Article 3 of the Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 …
25
It is alleged that Section 16, paragraph 1 of the Foundation Law removes that claim in defiance of Article 14, paragraphs 1 and 3, sentence 4 of the Basic Law [protection of property] …

28
4. Finally, Section 11, paragraph 3 of the Foundation Law allegedly violates Article 3, paragraph 1 of the Basic Law [non-discrimination] by generally excluding prisoners of war from the group of persons entitled to benefits: the complainants had also suffered wrongs due to forced labour under unworthy conditions.
III.
29
The constitutional complaint is not accepted for decision because the requirements for accepting a complaint of Section 93 a, paragraph 2 of the Law on the Federal Constitutional Court are not fulfilled. To the extent that the constitutional complaint is admissible, it is unfounded. Under constitutional law, there are no objections against the norms challenged.
30
1. a) The constitutional complaint of complainants Nos. 4 to 943 is inadmissible due to missed time limits …
31
b) The constitutional complaint of complainant No. 1 is inadmissible because it does not allege a violation of own constitutional rights …
32
c) The constitutional complaint of complainants Nos. 2 and 3 is partially admissible …

37
2. The constitutional complaint is unfounded.
38
a) Article 3 of the 1907 Hague Convention, as a principle, does not establish an individual compensation claim, but only codifies the general basic rule of international law (comp. Article 1 of the 2001 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts) regarding the liability to pay compensation between States party. This secondary claim for compensation, however, exists only in the international law relation between the States concerned. Insofar, it differs from the concerned individuals’ primary right to respect for the prohibitions of international humanitarian law, which exists in the international law relation between an occupying State and the population living in the territory occupied.
39
b) The basic principle of diplomatic protection does not categorically preclude a violating State’s domestic law from granting an individual claim to an individual injured, in addition to the international law claims of the individual’s home State … That this is not precluded, however, does not allow the inference of a rule or assumption according to which a State violating international law must grant claims to injured persons on the basis of its domestic law. It is rather the concrete content of the domestic legal order which is decisive. If, according to that, no compensation claim exists (comp. Federal Court of Justice, Judgement of 26 June 2003, III ZR 245/98, “Distomo case”), a violation of the property protection of Article 14 of the Basic Law does not come into question.
40
c) The provision in Section 11, paragraph 3 of the Foundation Law, according to which detention as prisoner of war in and of itself does not entitle to benefits, does not raise substantial concerns with a view to Article 3 of the Basic Law [non-discrimination].
41
Articles 4 et seq. of the Regulations concerning the Laws and Customs of War on Land annexed to the 1907 Hague Convention establish a special protection for prisoners of war. According to Article 6 of the Hague Regulations, they can, within exactly defined limits, also be utilized for forced labour. Article 3 of the 1907 Hague Convention sets up a special international law regime of liability for violations of the international humanitarian law of war. This system of rules of international law is a factor of such kind and weight … that it can justify the exclusion [of prisoners of war] under Section 11, paragraph 3 of the Foundation Law.
With regard to Article 3, paragraph 1 of the Basic Law, the legislator is also not prevented from distinguishing between a general fate during law, albeit hard and involving violations of international law, and victims of particularly ideologically motivated measures of persecution by the wrongful national socialist regime; in view of certainly substantial but nevertheless limited funds of the Foundation, the legislator is also not prevented from including only the latter in the group of persons entitled to benefits under the Foundation Law. 
Germany, Federal Constitutional Court, Italian Military Internees case, Decision, 28 June 2004, §§ 1–18, 22–25, 28–32 and 37–41.

In 2004, in the East German Expropriation case, Germany’s Federal Constitutional Court held:
100
(a) The expropriations on the territory of the Soviet occupation zone of Germany in the years 1945 to 1949, irrespective of whether they were occasioned directly by the Soviet occupying power or whether the German authorities installed by this occupying power had their own scope for decision in this respect, cannot be attributed to the sphere of responsibility of the state power of the Federal Republic of Germany, bound by the Basic Law (see BVerfGE 84, 90 (122–123)). …
101
Instead, the Soviet occupying power, which carried out the expropriations on the basis of sovereign acts or was responsible for them by reason of the factual circumstances of control, claimed special authorisation, in order to restructure the property system in its occupation zone as planned.
102
There is more than one reason to suggest that the competence to structure the occupation regime is restricted by the minimum requirements of humanity laid down in the Hague Land Warfare Convention (on the application of the Land Warfare Convention as customary public international law as early as in the course of the Second World War, see International Military Court (Internationaler Militärgerichtshof), Prozess gegen die Hauptkriegsverbrecher, 14. November 1945 bis 1. October 1946, judgment, pp. 260 ff., 267 ff.; Greenwood, in: Fleck (ed.), Handbuch des humanitären Völkerrechts, 1994, no. 120). Under Articles 42 et seq. of the Land Warfare Convention, armed occupation creates a legal relationship between the occupying and the occupied state. The occupier has particular rights and duties in the occupied territory. It is true that the victorious powers, in the legal foundation documents for the exercise of government power with regard to Germany, agreed that it should be possible for the victorious power in question to intervene significantly in the political and economic life of Germany. They regarded it as their duty “to fundamentally restructure the political system, the basis of the constitution, indeed, the education system and the whole economic and social structure of Germany” (see Part III.a § 3, 7, 9 and 11 et seq. of the Potsdam Agreement …)
103
However, the humanitarian core of the Land Warfare Convention, which consists of the principles of humanity in the meaning of the Martens clause of the Preamble to the Hague Land Warfare Convention … was binding even at the time of the occupation. The Martens clause was confirmed as follows in Article 1.2 of Protocol I Additional to the Geneva Conventions:
104
In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
105
It cannot be excluded that – as the complainants believe – acts of the Soviet occupying power were inconsistent with elementary principles of law, because, without differentiation as to individual responsibility, they were directed against a group of persons called the “class enemy” and aimed at its economical or even physical destruction.
106
However, it is not necessary to decide here the precise position of the boundaries of competence to structure the occupation regime and whether in this specific case they were exceeded.
107
b) On German unification, the Federal Republic of Germany attained the sovereign competence to decide on the continuation of the measures on the basis of sovereign acts by occupying powers (aa). Public international law did not impose on the Federal Republic of Germany a duty to make restitution (bb). The Federal Republic of Germany was subject only to a duty of cooperation with regard to the consequences, in order to achieve a situation closer to public international law (cc).

110
bb) The Federal Republic of Germany is subject to no duty derived from public international law to make restitution to the persons affected by the expropriations. In connection with the Two-Plus-Four Talks, it impliedly and admissibly waived the right to any claims it had to damages under public international law (1). There are no rules of mandatory public international law preventing this (2).
111
(1) Between the German Reich and the Soviet Union, the states that were succeeded by the Federal Republic of Germany and the Russian Federation, there was a state of war under international law … The Hague Land Warfare Convention may give rise to claims on an international level, that is, between the occupying power and the returning sovereign. A party to a conflict that does not observe the provisions of Hague law is, by Article 3 of the Land Warfare Convention (see Article 91 of Protocol I Additional to the Geneva Conventions, of 1977) obliged to pay damages. This provision corresponds to the principle under customary international law that the violation of its duties under public international law makes a state responsible (see also Article 1 of the ILC Articles on State Responsibility). This right to damages under secondary law, however, exists only in the public-international-law relationship between the states involved and is subject to their disposition. In this respect, the claim to damages differs from the claim under primary law of the persons involved that the prohibitions of humanitarian public international law are observed; this claim exists in the public-international-law relationship between the state occupying a territory and the population living in this territory.
112
In the Two-Plus-Four Talks, the Federal Republic of Germany impliedly waived any claims under the Hague Land Warfare Convention. By the wording of the Land Warfare Convention and the practice of the states, the Federal Republic of Germany was not obliged to assert such claims towards the former occupying power.
113
It is not in contradiction to this that each of the four Geneva Conventions of the year 1949 contains a provision depriving the states that are parties the right to release themselves or another from the responsibility for “serious violations” of public international law (Article 51 of the First Geneva Convention, Article 52 of the Second Geneva Convention, Article 131 of the Third Geneva Convention and Article 148 of the Fourth Geneva Convention). When these provisions were created, the creators believed that they had found in them an efficient means of enforcing the Hague law. In the practice of the law of war, however, this principle has not yet succeeded in establishing itself. Instead, as a rule the victor demands the payment of compensation from the conquered (reparations), although there was no unambiguous agreement to base this on violations of the law of war, and above all without the victor paying damages for the violations of law committed by itself. It cannot be concluded from the provisions of the Geneva Convention that the states are forbidden to waive claims under the Hague Land Warfare Convention in connection with entering into a peace treaty.
114
Any claims of the individuals protected by the Land Warfare Convention are burdened in advance by this authorisation of the occupying power and the sovereign to legislate and to waive, and they are also restricted by it. 
Germany, Federal Constitutional Court, East German Expropriation case, Order, 26 October 2004, §§ 100–107 and 110–114.

In 2006, in the Serbian Prisoners of War case, Germany’s Administrative Court of Berlin held:
1
The applicants, based on own or transferred rights, assert a claim for remuneration or compensation against the respondent due to forced labour done in the German Reich during detention as prisoners of war.
2
The applicants are supported in these proceedings by an association of former Serbian prisoners of war …
3
… [T]he applicants submit that they or their fathers, as prisoners of war during World War II, had been utilized for excessive forced labour. The applicants submit in this respect that they or their legal predecessors had been captured in April 1941 by a German-Italian army and had then been utilized for forced labour in a prisoner of war camp of the Wehrmacht, concretely identified in each case, until the day of their liberation.
4
The applicants base their claim for remuneration, amounting to DM 100 per month, on Article 34, paragraph 4 of the Convention relative to the Treatment of Prisoners of War of 27 July 1929 [1929 Geneva POW Convention] … and on Article 6, paragraph 5 of the Annex to the Convention respecting the Laws and Customs of War on Land – Hague Regulations – of 18 October 1907 … The respondent is said to be liable for the payment obligations not fulfilled by the German Reich. The applicants further are of the opinion that they also have compensation claims based on breach of official duty, due to the culpable omission by the German Reich to pay the remuneration, as well as a public law restitution claim, due to unjust enrichment of the German Reich. These claims had neither been excluded by international agreements, nor were they time-barred.

Grounds
10
The actions in any event are unfounded because the law does not give the applicants the asserted claim for payment against the respondent due to forced labour done during detention as prisoners of war in the German Reich before 8 May 1945.
11
1. From the provisions of international humanitarian law applicable until 8 May 1945 an individually enforceable claim for remuneration of prisoners of war for labour done during their detention cannot be deduced. After its own examination, the Chamber agrees with the legal opinion applied by the Administrative Court of Cologne in its judgment of 11 November 2002 … and the Higher Administrative Court for the Land North-Rhine Westphalia in its decision of 13 December 2004 …, in parallel proceedings of further Serbian former prisoners of war. These courts refer to the judgement of the Higher Administrative Court for the Land North-Rhine Westphalia of 19 November 1997 …, which in the case of a Polish former prisoner of war addressed the legal questions relevant here in a fundamental manner. Accordingly, no claim for remuneration for forced labour can be based on the provisions of the 1929 Geneva POW Convention applicable at the time of detention as prisoner of war, since in particular from Article 34, paragraphs 2 and 4 of that Convention no individual claims of nationals of States party to that Convention directly against a detaining power can be deduced. The Higher Administrative Court for the Land North-Rhine Westphalia assumed in its judgement that the applicant in that case was forced to do physical labour and, contrary to Article 34, paragraph 2 of the 1929 Geneva POW Convention, was not remunerated for it. The Higher Administrative Court then further noted:
12
“The provisions mentioned, however, are not directly applicable (“self-executing”) in the sense that the individual can assert subjective rights vis-à-vis a State party to the Convention.

14
According to more recent international law doctrine the individual is, indeed, no longer a mere object of international law, connected to international law only through the medium of the State, but can himself directly have rights and obligations under international law.

16
This applies in particular also to the legal position of the individual in international armed conflict, which is regulated by the international law of war.

18
The Geneva Convention relative to the Treatment of Prisoners of War of 1929, as international humanitarian treaty law, belongs to this “ius in bello”.

20
However, the provisions of Article 27, paragraph 3 and Article 34, paragraph 2 of the 1929 Geneva POW Convention only benefit the individual prisoner of war; they do not give him subjective rights vis-à-vis the detaining State, which he could enforce in that State’s domestic courts. As provisions of international treaty law, they can have become legally binding within the State only if, according to their wording, purpose and content, they are capable of causing legal effects like a domestic statutory provision.

22
These requirements are not fulfilled here.
23
A claim of prisoners of war to remuneration for forced labour cannot be deduced from the provision of Article 34 of the 1929 Geneva POW Convention. Indeed, prisoners employed for work other than that mentioned in paragraph 1 of the provision (administration, internal arrangement and maintenance of camps) are, according to the wording of Article 34, paragraph 2 of the 1929 Geneva POW Convention “entitled to a rate of pay”. This, however, does not entitle the individual prisoner to file a claim in the courts of the detaining power for payment of remuneration denied to him. Article 34 of the 1929 Geneva POW Convention is not sufficiently precise to serve as the basis of a claim for remuneration in an individual case. The provision itself contains no basis whatsoever for the calculation of pay, in particular also no differentiation depending on the kind of forced labour done. A treaty law provision lacking, the States party to the 1929 Geneva POW Convention rather left the fixing of the remuneration to be paid to the belligerent States, which are to conclude agreements regarding this matter (comp. Article 34, paragraph 2 of the Article 34, paragraph 2 of the 1929 Geneva POW Convention). If no such agreements have been concluded …, Article 34, paragraph 4 of the 1929 Geneva POW Convention, indeed, contains further provisions on the remuneration of the work of prisoners. These provisions, however, according to their content, objectively are not capable of serving as the basis of a claim for remuneration, either …
24
… Article 27, paragraph 3 of the 1929 Geneva POW Convention, if violated, is also not sufficiently precise to be capable of serving – potentially in conjunction with other, domestic provisions – as the basis of an individual person’s compensation claim …
25
Independent of Article 27, paragraph 3 and Article 34, paragraph 2 of the 1929 Geneva POW Convention being objectively incapable of serving as a legal basis of the claim for remuneration raised, their direct application as domestic law is also prevented by the fact that provisions on their enforcement in court are lacking. An assumed individual right remains empty, as long as the individual does not have the possibility to assert his rights – if necessary in domestic courts.

27
The 1929 Geneva Convention, however, does not provide for the legal protection of the individual by independent courts. Under the chapter heading “Complaints of prisoners of war respecting the conditions of captivity”, Article 42, paragraph 1 of the 1929 Geneva POW Convention gives prisoners of war only the right to bring petitions to the notice of the military authorities of the detaining State. Further, according to Article 42, paragraph 2 of the 1929 Geneva POW Convention, prisoners of war have the right to communicate with the representatives of the protecting powers in cases of complaints regarding their treatment. Before the military authorities and the protecting powers, prisoners of war are represented by the representatives appointed by them, comp. Article 43 of the 1929 Geneva POW Convention. Furthermore, Articles 86, 87 of the 1929 Geneva POW Convention provide the possibility of control by the protecting powers of the execution of the Convention. Apart from that, the 1929 Geneva Convention contains no further rights of the individual. Overall, it can be concluded that it is up to the contracting parties – and not to the individual prisoner of war – to raise among each other violations of the international law provisions and, if necessary, to punish them.

29
The objective of the 1929 Geneva Convention is, inter alia, in the extreme event of a war, to mitigate the inevitable rigours thereof and to alleviate the condition of prisoners of war (see preamble). The provisions on the work of prisoners of war in Part III of the 1929 Geneva Convention are therefore first of all expressions of humanity. The contracting parties are obligated to respect them in all circumstances (comp. Article 82 of the 1929 Geneva POW Convention), so that the individual prisoner of war benefits from them by way of reflex, without being able to enforce adherence to the provisions in court.”
30
The applicants have submitted no decisive considerations in support of their claim which would require a different legal assessment. Their attempts to deduce an individual claim of the persons concerned from the development of the law do not succeed since a responsibility of the Federal Republic of Germany for obligations of the German Reich first of all requires that such an obligation existed. In this respect, the Federal Constitutional Court has clarified in its decision of 15 February 2006 [2 BvR 1476/03, “Distomo case”] that an obligation of the German Reich can have come into existence only on the basis of the legal provisions in force at the time of the events giving rise to liability. It is therefore irrelevant for the decision whether the view of the applicants regarding the development of the law since 8 May 1945 is to be followed.
31
In the decision mentioned, the Federal Constitutional Court declined to accept for decision the constitutional complaint against the judgement of the Federal Court of Justice of 26 June 2003. In its reasons for the non-acceptance for decision, the Federal Constitutional Court explained that there was no liability of the Federal Republic of Germany for war crimes by members of the German armed forces during the occupation of Greece during World War II, and, in this context, also addressed the question whether, in the case of a violation of the Hague Regulations, Article 3 of Hague Convention IV can give rise to individual claims. The Federal Constitutional Court answered this question in the negative and in particular also based itself on the view, also taken by the Higher Administrative Court for the Land North-Rhine Westphalia, that “understanding the norm as the basis of individual claims [was prevented] already by its lack of direct applicability”. Therefore, it was “still only the home State [which was] entitled to secondary claims for compensation based on international wrongful acts of a State against foreign nationals”.
32
2. The domestic law applicable in the territory of the Reich until 8 May 1945 has also not given rise to a claim for compensation against the German Reich for forced labour.
33
It need not be decided whether the requirements of liability for breach of official duty according to Section 839 of the Civil Code in conjunction with Article 131 of the Weimar Constitution were fulfilled. In any case, the compensation claim of a foreign prisoner of war was excluded according to Section 7 of the “Law on the Liability of the Reich for its Officials” (old version), because, according to that, claims of foreigners required a guarantee of reciprocity by international treaty or by a foreign State’s legislation, which had to be published in the Reich law gazette by the Reich chancellor. As already submitted by the applicants, such a publication was made only in relation to the Netherlands and Gdansk. According to the Federal Constitutional Court (l.c.), this provision is compatible with the Basic Law of the Federal Republic of Germany; there is no general rule of international law which generally demands equal treatment of foreigners and nationals.
34
Finally, the applicants have no claim for remuneration of the work done on the basis of a public law restitution claim, analogous to Sections 812 et seq. of the Civil Code. A claim based on unjust enrichment in any case requires, not regarding the further requirements of the restitution claim, that the shift of assets happened without legal ground. Also in this respect reference can be made to the judgement of the Higher Administrative Court for the Land North-Rhine Westphalia, already quoted several times. Accordingly, such a claim is prevented already by the circumstance that the prisoners of war were utilized for forced labour not without legal ground. Rather, this treatment was permissible under the international law rules of the Hague Regulations and the 1929 Geneva POW Convention. If the prisoners of war were utilized for forced labour beyond the provisions of the Hague Regulations and the 1929 Geneva POW Convention, the detaining State – as described above – must answer for that only under international law rules, without a direct claim of the injured person against the detaining State coming into existence. 
Germany, Administrative Court of Berlin, Serbian Prisoners of War case, Judgment, 11 April 2006, §§ 1–4, 10–12, 14, 16, 18, 20, 22–25, 27 and 29–34.

6
2. The motion for admission of appeals proceedings is … unfounded.

13
The applicants’ submissions do not give cause to the Senate to assume that the claim based on international law requires further clarification, by way of derogation from the case law of the Federal Constitutional Court.
14
Already in its decision of 13 May 1996 the Federal Constitutional Court clarified that the traditional conception of international law as inter-State law conceived the individual not as a subject of international law, but only granted him indirect international protection. By means of diplomatic protection the State asserted its own right to respect for international law in the person of its national. This principle of exclusive entitlement of the State had applied already in the years 1943–1945 to the violations of human rights. Generally, the individual was not able to demand determination of a wrong or compensation for a wrong. Also, neither under international law nor generally under domestic law of a specific State, did the individual at the time have a subjective, enforceable right to the exercise of diplomatic protection by his home State. Only in the course of the more recent development of extended protection of human rights has international law given the individual a right of his own, has given other subjects of international law the right to intervene in cases of grave violations on the basis of UN Security Council resolutions, and has developed protective treaty law systems in which the individual himself can assert his rights.
15
Further, in its decision of 28 June 2004 [2 BvR 1379/01, “Italian military internees”], in a dispute regarding compensation for forced labour by Italian prisoners of war, the Federal Constitutional Court stated that Article 3 of the 1907 Hague Convention generally did not give rise to an individual compensation claim, but only codified the general basic rule of international law regarding liability obligations between States party; in this context the Federal Constitutional Court also considered Articles 4 et seq, 6 of the Hague Regulations. The secondary claim for compensation, however, existed only in the international law relation between the States concerned. Insofar, the compensation claim differed from the concerned individuals’ primary right to respect for the prohibitions of international humanitarian law, which existed in the international law relation between an occupying State and the population living in the territory occupied.
16
The Federal Constitutional Court repeated this understanding of international law in its decision of 15 February 2006 [2 BvR 1476/03, “Distomo case”] and further explained with regard to Article 3 of the Hague Convention that the provision did not give rise to a direct individual compensation claim for violations of the international law of war. Indeed, the origin of the norm showed that it was intended to protect the individual; it did, however, not follow from this that the provision could be the basis of a direct, originally international law compensation claim of the concerned individual vis-à-vis the State. Independent of the provision not being “self-executing”, the provision could not be understood as a basis of individual claims because according to the traditional conception of international law the individual was not qualified as a legal subject. Potential developments of the law or changed legal views on the level of constitutional or international law could anyway not be taken into consideration in the assessment of events in 1944. In this respect, the legal provisions in force at the time of the events giving rise to liability generally were relevant.

20
The applicants’ submission that during World War II some States paid compensation for forced labour by German prisoners of war does not show that this could have been enforced domestically in courts.
21
The further submission that the Federal Constitutional Court had exactly decided that the entitlement to claims of State parties did not exclude a corresponding entitlement of the individual and that international law claims did not exclude domestic claims, also does not help the applicants’ motion. The first point does not prove the granting of the entitlement of individual claims, the second point was taken into account by the Administrative Court insofar as it examined bases of claims based on domestic law – even those to be asserted in civil law courts.
22
d) Also with regard to domestic legal bases, the Senate sees no need for further clarification due to factual or legal difficulties.
23
… The Administrative Court dismissed a claim for breach of official duty [based on Section 839 of the Civil Code in conjunction with Article 131 of the Weimar Constitution] due to the consideration that such a compensation claim of a foreign prisoner of war was excluded according to Section 7 of the “Law on the Liability of the Reich for its Officials” of 22 May 1910 because, according to that, claims of foreigners required a guarantee of reciprocity by international treaty or by a foreign State’s legislation, which had to be published in the Reich law gazette by the Reich chancellor. In the case of Serbia, such a publication had not been made. According to the Federal Constitutional Court (in its decision of 15 February 2006, 2 BvR 1476/03, “Distomo case”), in confirmation of the decision of the Federal Court of Justice (judgement of 26 June 2003, III ZR 245/98, “Distomo case”), this legal understanding of the effect of the exclusion of liability under Section 7 of the “Law on the Liability of the Reich for its Officials” was not contrary to the Basic Law of the Federal Republic of Germany. According to the version of this provision applicable until 30 June 1992, a provision which had been compatible both with the Basic Law and the general rules of international law within the meaning of Article 25 of the Basic Law, nationals of a foreign State had had a claim based on breach of official duty against the Federal Republic only if reciprocity was guaranteed by the legislation of a foreign State or by international treaty. The Senate sees no need for further clarification regarding this point.

25
e) The Administrative Court further denied a claim for remuneration for forced labour on the basis of a public law restitution claim, analogous to Section 812 et seq. of the Civil Code. Such a claim based on unjust enrichment in any case required, not regarding the further requirements of the restitution claim, that the shift of assets happened without legal ground. This was not to be assumed here; the prisoners of war were utilized for forced labour not without legal ground, rather, there had been a legal ground in the international law provisions of the Hague Regulations and the 1929 Geneva POW Convention. If the prisoners of war were utilized for forced labour beyond the provisions of the Hague Regulations and the 1929 Geneva POW Convention, the detaining State alone had to answer for that under international law rules, without a direct claim of the injured person against the detaining State having come into existence.
26
In this respect the applicants submit in their motion that they did not deny that they had been obligated to do forced labour … [A]t the most, compensation was demanded for unlawful utilization for forced labour, forced labour going beyond the usual working time. They were rather of the opinion that with the forced labour they had acquired an entitlement to pay … The withholding of the pay infringed Article 14 [protection of property] of the Basic Law of the Federal Republic of Germany …
27
This argumentation, already because of its decisive point of departure – protection of property under Article 14 of the Basic Law –, does not lead to legal questions necessary to clarify in appeal proceedings. Relevant for the assessment of legal claims against the German Reich for which the Federal Republic of Germany, as the case may be, might be liable is the legal situation at the time when the forced labour in question here was done. Such debts, even if they had to be paid by the Federal Republic of Germany, are always only obligations of the Reich … This means in particular that, with regard to the possible bases of claims against the Reich, legal provisions, developments or changed legal views for example in the light of the Basic Law applicable today or of changes of international law must not be taken into consideration (comp. Federal Constitutional Court, decision of 15 February 2006, 2 BvR 1476/03, “Distomo case”, Federal Court of Justice, judgement of 26 June 2003, III ZR 245/98, “Distomo case”). Questions regarding a claim for unjust enrichment … on the basis of the protection of property under Article 14 of the Basic Law of the Federal Republic of Germany therefore do not arise … Restitution or compensation claims would only come under the protection of Article 14 of the Basic Law if their existence were established … The scope of protection of Article 14 of the Basic Law … cannot give rise to a claim for unjust enrichment, such a claim rather is premised (comp. Federal Constitutional Court, decision of 15 February 2006).
28
f) The applicants also are not successful in claiming fundamental meaning of the subject matter as a ground for admission of appeals proceedings, Section 124, paragraph 2, no. 3 of the Administrative Courts Procedure Code …

30
Insofar as the legal bases of the claim under international law are concerned, the Senate is of the view that the quoted case law of the Federal Constitutional Court domestically sufficiently clarifies also the considerations decisive here regarding the non-granting of an individual claim against the Federal Republic of Germany on the basis of the 1907 Hague Regulations and the Geneva Convention relative to the Treatment of Prisoners of War of 27 July 1929. Admission to further domestic proceedings in second instance is therefore not necessary.
31
In view of the case law of the Federal Court of Justice described above, confirmed by the Federal Constitutional Court, this also applies to the question of the limitation by Section 7 of the “Law on the Liability of the Reich for its Officials” of claims for breach of official duty under Section 839 of the Civil Code in conjunction with Article 131 of the Weimar Constitution. 
Germany, Higher Administrative Court of Berlin-Brandenburg, Serbian Prisoners of War case, Decision, 6 September 2007, §§ 6, 13–16, 20–23, 25–28 and 30–31.

In 1951, the German Chancellor made a declaration before the German Bundestag (Lower House of Parliament), which was then endorsed by this body. The declaration stated:
However, unspeakable crimes have been committed in the name of the German people, crimes that impose a duty to make moral and material amends, both as regards the individual damage that Jews have suffered and as regards Jewish property for which individual claimants no longer exist … The Federal Government is prepared to work with representatives of Jews and the State of Israel, which has received so many homeless Jewish refugees, to find a solution to the problem of making amends in a material sense. 
Germany, Lower House of Parliament, Declaration by the Federal Chancellor entitled ”Germany is obliged to make moral and material amends”, BT-Drucksache 6697, 27 September 1951.

In a diplomatic note relative to the 1995 US-Germany Agreement concerning Final Benefits to Certain US Nationals Who Were Victims of National Socialist Measures of Persecution, the government of Germany stated: “Any payment by the Government of the Federal Republic of Germany under this Agreement will be only for the benefit of United States nationals who were victims of national socialist measures of persecution by reason of their race, their faith or their ideology.” In its response, the US government acknowledged receipt of the diplomatic note. 
Agreement between the Government of the Federal Republic of Germany and the Government of the United States of America concerning Final Benefits to Certain United States Nationals Who Were Victims of National Socialist Measures of Persecution, Bonn, 19 September 1995, also known as the Princz Agreement.

In 1995, the German Government, in reply to a question from members of the Lower House of Parliament with regard to payments in reparation for Greek victims of the German National Socialist regime, stated:
With regard to a concluding settlement of the claims of Greece resulting from National Socialist measures of persecution against Greek nationals who have suffered damages to their freedom and health, the Federal Republic of Germany has paid, on the basis of the treaty of 18 March 1960 “concerning obligations in favour of Greek nationals who were concerned by national socialist measures of persecution”, DM 115 million. 
Germany, Lower House of Parliament, Reply by the Government to a question on payments in compensation for victims of the National Socialist regime from Greece, BT-Drucksache 13/2878, 7 November 1995, p. 2.

In 1995, the German Government, in reply to a question from members of the Lower House of Parliament regarding the amount of payments made by the Federal Republic of Germany in compensation to former East and West European inmates of concentration camps, stated: “Including … payments in the field of reparations through the social insurance, the total amount of payments up to now are significantly more than DM100 billion.” 
Germany, Lower House of Parliament, Response by the federal government to a question from members of parliament on payments made by the Federal Republic of Germany in compensation to the US citizen and survivor of the concentration camp Mr Hugo Princz, BT-Drucksache 13/3190, 4 December 1995, p. 3.

In 2006, in reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Criminal prosecution of persons responsible for war crimes in Italy and compensation for Italian military internees”, Germany’s Federal Government wrote:
1. Does the Federal Government share the view of the authors of the Minor Interpellation that the Hague [Convention], while not making individual compensations for violations of the Convention compulsory, nevertheless allows them, and if not, why not?
International humanitarian law only envisages inter-State claims in compensation of war damages, not however individual compensation claims. Also Article 3 of the 1907 Hague Convention IV accordingly only codifies a liability to pay compensation between contracting States …
2. According to the view of the Federal Government, did the German Reich actually grant the status of prisoners of war including the rights related to that status to the Italian military internees, and what is the basis of the Federal Government’s view?
3. According to the view of the Federal Government, as regards the question whether the Italian detainees are to be regarded as prisoners of war, is it necessary to take into consideration not only their formal legal situation but also their actual material situation, and what is the basis of the Federal Government’s position?
4. Does the Federal Government share the view of the authors of the Minor Interpellation that the Italian military internees were de facto not treated as prisoners of war, and if not, why not?
5. Does the Federal Government share the view that the treatment of the Italian military internees was a grave wrong, and if yes, why has it so far refused to compensate them?
The Federal Government concurs with the expert opinion by Prof. Dr. Dr. h.c. Christian Tomuschat, according to which the so-called Italian military internees, from the time of their capture until the end of the war, had the legal status of prisoners of war according to the provisions of the 1899/1907 Hague Regulations and the Geneva Convention relative to the Treatment of Prisoners of War of 27 July 1929. The expert opinion finds that a transferral into civilian status, effective under international law, had not taken place.
The Federal Government expressly regrets that many of the military internees had to live and work under conditions which were harsh and inconsistent with human dignity and that protective provisions of the international law of war were not respected. This, however, does not change the legal classification of the military internees as prisoners of war. The Law on the Creation of a Foundation “Remembrance, Responsibility and Future” has settled in a final manner the question of compensation for forced labour; according to Section 11, paragraph 3 of the Law prisoners of war are not eligible for payments.

7. Is the information received by the authors of the minor appellation … correct that of the 110.000 applications submitted by Italian forced labourers to the International Organization for Migration 100.000 have been rejected?
Italian military internees and other prisoners of war have a legal entitlement to payments only if they were deported to a concentration camp. In these exceptional cases a special persecution, marked by national socialist ideology, was present; prisoner-of-war status recedes into the background …
8. How many actions for compensation by former Italian military internees are currently filed
a) with German courts,
The Federal Government has no reliable total numbers on actions by former Italian military internees pending in German courts, since these actions are not separately registered …
b) with foreign courts (please list by country),
In Italy, currently pending are 40 individual actions and 6 class-actions (overall 113 applicants) for compensation for material/immaterial damages, filed by survivors of German war crimes or other national socialist crimes committed during World War II, or by their relatives or surviving dependants. There is no information on actions of Italian victims in other foreign courts.
c) with international courts?
The Federal Government is aware that an association of former military internees has lodged an individual application against the Federal Republic of Germany with the European Court of Human Rights in Strasbourg. So far, however, the Court has not communicated this application to the Federal Republic of Germany. The Federal Government is not aware of further proceedings in international courts.
9. From the point of view of the Federal Government, how have these court proceedings developed and what position does the Federal Government take in these proceedings?
The Federal Government is of the view that these proceedings contravene the principle of State immunity. Since the Federal Government has so far not been involved in proceedings in international courts – see reply to question 8c – it cannot make a statement on that.
10. From the point of view of the Federal Government, what is the development of a case in the Supreme Court of Cassation in Rome, which, inter alia, dealt with the question of State immunity?
a) What is the Federal Government’s assessment of that decision?
b) From the point of view of the Federal Government, what are the consequences of that decision?
The Federal Government is of the view that the judgement of the Italian Supreme Court of Cassation in the Ferrini case contravenes the principle of State immunity.

14. Is it correct that contributions to social security were paid for the Italian military internees forced to do forced labour, that, however, until today those have not been paid out to the entitled persons, and if yes, what consequences does the Federal Government draw from this?
For prisoners of war of all nationalities who during World War II, at the instigation of the former German Wehrmacht, worked for German employers, no contributions to German pension insurance institutions were paid. Neither for the prisoner of war nor for the German employer was there an obligation to pay contributions to pension funds, since the work was not done in the context of an employment or work relationship and the prisoner of war did not receive a salary for his work from the employer. Who is to be regarded as prisoner of war in this context does not follow from German laws but from the international law provisions of the 1929 Geneva Prisoners of War Convention, which allows military authorities to employ prisoners of war as workmen. 
Germany, Bundestag, Reply by the Federal Government to the Minor Interpellation by the Members Ulla Jelpke, Sevim Dagdelen, Jan Korte, further Members and the Parliamentary Group DIE LINKE – BT-Drs. 16/2187, Criminal prosecution of persons responsible for war crimes in Italy and compensation for Italian military internees, BT-Drs. 16/2422, 21 August 2006, pp. 1–6.

In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Victims of the war in Afghanistan”, Germany’s Federal Government wrote:
11. Since 2002, in how many cases have victims, their relatives or others been refused compensation payments and based on what assessment of the circumstances (please identify the legal bases and specific cases)?
Payments were not made in three cases.
In one case compensation for the repair costs of a damaged vehicle was rejected because the Afghan claimant had himself caused the accident by a reckless overtaking manoeuvre. Concerning another vehicle accident, compensation was also rejected because there was no evidence that the German ISAF-vehicle was involved. In a third case compensation for injuries to civilians was rejected because the German soldiers involved had used lawful enforcement measures and the Afghan citizens had not reacted to the clear warning signals.
12. Based on what grounds in international law or constitutional law does the Federal Government determine compensation payments and their amount?
The payments are made for humanitarian reasons.
a) Which legal criteria are used to determine whether compensation is paid?
See response to question 12.
13. Are there cases in which there is a legal obligation to pay compensation?
The payments are made for humanitarian reasons.
a) If so, which are they (please include the legal bases and specific cases)?
b) If not, please provide the reasons why nonetheless compensation has been paid/is being paid?
See response to question 13. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Jan van Aken, Paul Schäfer (Cologne), Christine Buchholz, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/1813, 20 May 2010, p. 6.

In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Agreements with the Italian government to avoid the payment of compensation to victims of the National Socialists and state of the dispute on compensation matters”, Germany’s Federal Government wrote:
g) Did the Federal Government enter into contact with the claimants to settle their compensation claims out of court or does it plan to do so, for example in case of a guilty verdict?
The Federal Government did not enter into contact with the claimants and does not plan to do so. International humanitarian law provides for inter-State compensation for damage caused, but not an individual right to compensation.
For the purposes of reparation, the Allies had agreed after the Second World War to confiscate or seize German assets abroad and German copyrights as well as to carry out dismantling and deliveries from the on-going production etc. in the respective occupation zones. Other former war opponents were also involved through the international reparation commission in Paris. However, in its peace treaty of 1947 Italy had renounced its claims against Germany resulting from the Second World War. In addition, in the early 1960s the Federal Republic of Germany concluded so-called comprehensive compensation agreements with twelve Western States to compensate for specific wrongs by the National Socialists and made payments. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Ulla Jepke, Jan Korte, Christine Buchholz, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/2340, 29 June 2010, p. 5.

Since the end of the Second World War, Germany has adopted several laws related to reparation and restitution for victims of the war and the holocaust, for example the Federal Restitution Law (1957), as amended. 
Germany, Federal Restitution Law, 1957, as amended.