Practice Relating to Rule 150. Reparation
France’s Decree on Reparation for World War II Orphans (2004) provides:
Article 1 – Any person whose mother or father, of French or foreign nationality, was deported from the national territory during the Occupation on the grounds and under the conditions mentioned in articles L.272 and L.286 of the Code on Military Invalidity Pensions and War Victims, and died in deportation, is entitled to reparation, in accordance with the provisions of the present Decree, if the person was younger than 21 years at the time the deportation took place.
This regime equally benefits persons, younger than 21 years at the time of the events, whose father or mother, of French or foreign nationality, was executed during the Occupation under the circumstances defined in articles L.274 and L.290 of the same Code.
Excluded from the benefit of the regime provided by the present Decree are persons who receive a lifelong compensation for the same facts by the Federal Republic of Germany or the Republic of Austria.
– The reparation takes the form, at the choice of the beneficiary, of a compensation sum of 27 440.82 € or of a lifelong monthly allowance of 457.35 €.
In 2010, in the Kaplan case, the Paris Administrative Court was called upon to rule on a matter of compensation related to art works despoiled in occupied France during World War II:
[T]he Commission for the Compensation of Victims of Despoliation received an application for compensation regarding … pieces of art that were deposited in the safe of a bank in Bordeaux in 1941. According to the inventory of the deposit, there were 151 pieces, including 78 paintings, and all of them were seized by the occupying forces on 15 March 1943, while three of them were returned after the conflict. [The applicants] allege that the commission should have assessed the amount of the damage caused by the despoliation … with regards to [the value of the property at the] date when the damage was assessed rather than its value as recognized in 1962 by the German government … [The applicants allege also that] the prime minister, by adopting [the assessment of the damage as] recommended by the commission, violated the principle of integral reparation.
… [T]he damage to the property shall be assessed when its causes have ceased and its extension is known, and it is thus possible to proceed with the reparation. In the present case, from the 151 paintings and pieces of art stolen […], only three were returned after the war. The reparation of the damage provoked by the disappearance of this cultural property, which is by its very nature irreplaceable, can only consist of compensation corresponding to the estimated value of the property at the day of its disappearance, or from the moment when such estimation became possible, actualized to cover the monetary erosion … Consequently, the prime minister adequately applied [Decree No. 99-778 of 10 September 1999] by basing the calculation of the compensation due by the State … on the value determined jointly by the German authorities and the interested persons in 1962. This decree does not aim at ensuring the integral reparation of the damage, but rather at allowing the State to restore the balance destroyed by the damage in a fashion that appears to be the most exact possible and taking into account in particular the difficulties related to the long time elapsed since the facts, the diversity of the stolen property and the determination of its value.
The Court also explained:
[A]ccording to article 1 of the Decree [No. 99-778 of 10 September 1999]: “… a commission is established before the prime minister with the mandate of reviewing individual claims submitted by victims or their legal heirs or assignees in order to receive reparation for damages following the despoliation of their property resulting from anti-Semitic legislation adopted during the Occupation by either the occupying power or the Vichy government”.
In 1999, the French Government created by a decree a “Commission for the Compensation of Victims of Spoliation Resulting from Anti-Semitic Legislation in Force During the Occupation” (also known as “Commission Drai”).
Furthermore, in 2000, the French Government established a special compensation programme for orphans whose parents were victims of anti-Semitic persecution.
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, France stated:
40. … [O]ne of the most serious breaches of the rules of international humanitarian law resulting from the construction of the wall along the chosen route no doubt concerns, prima facie, the property destruction caused by it, which is referred to in the Secretary-General’s Report.
41. On this subject international law calls for account to be taken of two considerations. First, it requires compensation which effectively makes good the entire injury suffered by the owners of the property in question. Second, it allows for account to be taken of “necessities of war”.