Sketches for a Reparation Scheme: How Could a German-Italian Fund for the IMIs Work?

Abstract

Given the deadlock in the current negotiations between Germany and Italy and the unavailability of judicial remedies for the victims, the two states could set up a reparation scheme. This chapter sketches some of the main features of such a hypothetical scheme, considering existing internal or international arrangements in the context of transitional justice (the Foundation ‘Remembrance, Responsibility and Future’ (Erinnerung, Verantwortung und Zukunft) scheme; the Australian DART scheme; the deal between Japan and South Korea on reparations to ‘comfort women’; the US/French schemes for reparations and restitution to holocaust victims; the Eritrea/Ethiopia reparations scheme; and the Iraq/Kuwait scheme). In particular, the emphasis is on the system of identification of the eligible victims, the question of financing and the fate of pending and future judicial claims. Assuming the states’ willingness to explore this project, the chapter outlines some of the ways the scheme could operate in practice, drawing from existing models.

I am grateful to the PAX Peace Agreement Database staff who helped me to retrieve the text of several relevant agreements. I also thank the law schools of Universidad de la Sabana (Bogotá) and LUISS Guido Carli (Rome), where I resided at the time of writing.

I. Introduction

Should Germany and Italy decide to set up a joint compensation (or reparation)¹ fund for Italian Military Internees (IMIs) and other victims of Nazi crimes (referred to, when taken together, as the ‘Italian victims’) who have yet to obtain any reparation,² what would this fund look like? This chapter’s analysis takes for granted some of the conclusions and findings explored more fully in the other chapters in this volume. It therefore does not seek to determine whether the two states—as a matter of law, comity or pragmatism—must, should, or even could³ accept the establishment of a joint fund.⁴ The working assumption here is that there nevertheless exists the political will to make such a choice.⁵ Arguably, this resolution would constitute an elegant way to cut the Gordian knot of the immunity deadlock and grant overdue reparation to the victims. It might also be that the operation of such a fund could suffice for the Italian Constitutional Court (ItCC) to revise its stance on the granting of immunity to Germany in civil proceedings before Italian courts. This prospect remains subject to speculation, and is more fully explored by Paolo Palchetti and Riccardo Pavoni in their respective chapters.⁶ Furthermore, this chapter will also not address the chronological conundrum regarding the victims’ characterization under international humanitarian law.⁷ Instead, it will be assumed that, under the prevailing approach, Italian victims should receive some reparation irrespective of the legal characterization of Germany’s conduct at that time.

In light of these assumptions, the narrow focus of this chapter will be on certain practical features and arrangements of the possible joint scheme to come (the ‘Joint Scheme’). Selected matters will be addressed, such as the funding of the Joint Scheme, procedures for the distribution of compensation (including the criteria of eligibility and the appointment of a competent authority for the review of individual applications), and the waiver of judicial claims.

An attempt is made to draw on extant schemes without presuming any significant similarity between them. Quite simply, the idea is to look at existing solutions and provide the architects of the Joint Scheme with a range of options that could be utilised alongside a handful of warnings. As this chapter ends the substantive section of this volume, it marks an opportune moment to point the way (or ways) ahead for the Italian and German authorities.

Sections II and III concern two domestic schemes implemented by Germany and Australia respectively. Section IV addresses selected payment schemes established at the interstate level. Section V concludes the chapter by drawing the threads together and sketching some features of the Joint Scheme. Although section V provides a distilled checklist, the intermediate sections account for its composition.

This chapter’s intention is to identify some valid principles that could inform the Joint Scheme’s construction and compose a roadmap. Ultimately, however, the conviction is that a Joint Scheme for reparations, whatever its make-up, is preferable to none. This chapter builds on both these intuitions, which Adrian Vermeule effectively juxtaposed when concluding upon the desirability of less-than-perfect reparation schemes:

Viewed in the concrete, both transitional and nontransitional programs or awards of compensation are often disastrously unprincipled. We must step back a mile or three, to reflect that in many cases the only other option not ruled out by political constraints—doing nothing at all—would be even worse.⁸

A Joint Scheme would be, therefore, a vessel of ‘rough justice’, a device preferable to inaction albeit inevitably flawed under the prevailing standards of justice.⁹ While roughness is both inevitable and acceptable, the Joint Scheme should not be unprincipled. This chapter gathers, and expatiates on, the appropriate principles. While designed to address the unresolved status of IMIs, this chapter could as well work as blueprint for any mechanism of financial reparations in the wake of historical injustice, mutatis mutandis.

In particular, the Decalogue-redolent list of section V does not lay the ground rules for a reparation scheme (for IMIs), but for any reparation scheme.

II. Next of Kin: The RRF Foundation

A useful template to shape the Joint Scheme is the law establishing the Foundation ‘Remembrance, Responsibility and Future’ (Erinnerung, Verantwortung und Zukunft) (RRF).¹⁰ Germany entrusted the RRF with the payment of compensation to applicants who were victims of forced labour and other ‘injustices’ perpetrated by the Nazi regime.¹¹ IMIs were unable to obtain compensation under this law, which expressly excluded prisoners of war from its application.¹² Other victims of Nazi crimes, including the victims of mass killings, were altogether outside the scheme’s reach. The point here is not to question the Foundation’s decision to reject the IMIs’ applications or the scope of application of the RRF but rather to consider the functioning of the compensation system established under the RRF Law. It is quite detailed and might serve as a model for the Joint Scheme’s machinery.

The financing for the RRF fund was provided by the German federal government and a consortium of German companies.¹³ The government and German industry each made a one-off contribution to the RRF fund of DM (Deutsche Mark) five billion.¹⁴ A board of trustees, composed of 27 members, obtained responsibility for its management. These included, besides a number of German officials, one representative for each country, ethnic or national group amongst the prospective applicants (namely Israel, the US, Poland, Russia, Ukraine, Belarus, the Czech Republic, Roma and Sinti, and Jews) and other institutional members (from the UN and other international institutions).¹⁵

The Foundation did not directly carry out the distribution of compensation. The funds were made available to a series of non-profit ‘partner organizations’, each responsible for receiving claims from a specific group of applicants. These organizations were tasked with the liquidation of successful claims¹⁶ and with the establishment of an appeal process for the review of first instance determinations.¹⁷

Specific provisions required payments to be suspended or only partially made until the exhaustion of applications, in order to prevent the Fund from depleting its resources and becoming insolvent, thus failing to satisfy all eligible applications after paying out early processed claims.¹⁸ For instance, the maximum payable amount to each applicant eligible as ‘slave labourer’ was set initially at 50% of the amount owed. The outstanding portion was paid out ‘after conclusion of the processing of all applications pending before the respective partner organization, to the extent possible within the framework of the available means.’¹⁹

The RRF Law contained a specific provision detailing the eligibility of applicants for compensation.²⁰ It covered persons subjected by German authorities or commercial companies to forced labour, and subjected to detention or harsh living conditions.²¹ It also stipulated the possibility of compensating property losses if the applicants had been unable to seek compensation under previous schemes.²² The burden of demonstrating eligibility lay primarily with the applicants, although the competent partner organization would normally provide and consider available aggregate information to complement the evidence provided by the individuals.²³ The competent organization was authorized to accept, on a case-by-case basis, applications deprived of supporting documentation. For the most part, claims were strictly personal and, if the application related to the loss of property, heirs could bring it only if the victims had died after February 1999.²⁴

As for the amount of compensation granted to successful applicants, the RRF Law set a cap of DM15,000 (approximately €7,600) for internees in concentration camps (‘slave labourers’)²⁵ and DM5,000 (approximately €2,530) for applicants who, outside of concentration camps, were subjected to other forms of harsh treatment, confinement and detention (‘forced labourers’).²⁶ A total of DM8.1 billion was ear-marked for compensating slave (and forced) labour, with DM50 million and DM1 billion budgeted, respectively, to compensate other personal injuries and property losses.²⁷ DM700 million were instead reserved for separate projects of the Foundation other than compensation.²⁸

The transfer of funds awarded under the compensation scheme was conditional on a previous declaration of ‘legal peace’ made by the German parliament, certifying the dismissal of all lawsuits pending abroad.²⁹ The Law also prescribed that compensation claims could only be brought under the procedures established thereunder, to the exclusion of all other claims.³⁰ Applicants would waive all other avenues of redress, and the waiver would take effect at the moment of payment.³¹ To endorse the unilateral preclusion of other claims effected by Germany, the US government issued a statement of interest in every dispute brought before US courts—effectively validating the choice of forum made in the Law and requesting that the individual claim be redirected to the RRF.³²

To ascertain the viability of adopting similar solutions in a Joint Scheme, a few essential traits of this compensation scheme should be isolated. Some elements seem fit for transplant: the quid pro quo nature (dismissal and waiver of lawsuits in exchange for compensation), the administrative process of claims liquidation, the intentional ambiguity regarding the legal basis for addressing injustices, entrusting the governance of payment processes to non-profit organizations, the flexible evidentiary principles, and the prescription of a possibility to challenge liquidation decisions and obtain their review.

Other elements of the RRF scheme appear less appropriate. The non-eligibility of heirs would frustrate the effectiveness of the Joint Scheme, given the timeframe of the crimes for which reparation is due. Some commentators criticized the Law for showing, on the part of Germany, ‘no remorse, no confession, and no sense of debt for the merciless treatment’ of the victims.³³ The quantification of compensation caps is also an obviously delicate matter. Forced labourers employed outside concentration camps (non-slave labourers) received a sum that could be considered low against several plausible baselines (for instance, the DM5,000 cap meant, for most applicants, that the amount awarded was lower than what they would have received had they been paid the minimum wage for the labour service supplied at that time).

III. DART: The Australian Solution

Since 2011, Australia has been coping with a barrage of individual complaints relating to sexual and other forms of abuse allegedly perpetrated by personnel of the Australian Defence Force.³⁴ After evidence emerged of systemic problems, the government established the Defence Abuse Response Taskforce (DART), which was to assess individual complaints and determine the appropriate response thereto.³⁵

A range of possible responses were offered, including restorative justice/conferencing processes, counselling, compensation capped at A$ (Australian Dollars) 50,000,³⁶ and the referral of matters to criminal prosecution and/or the military justice system.³⁷ Nearly all applicants requested monetary reparation.³⁸ The focus of this study will only be on the monetary reparation system. Nonetheless, the scheme was remarkable for providing a diverse set of remedies. In particular, the DART process acknowledged the need for victims to have their complaints heard and their grievances accepted by the Australian Defence Force, while also devising a specific engagement procedure to that effect.³⁹

It is important to note that although DLA Piper (the law firm tasked with carrying out the initial investigation) recommended establishing a ‘compensation’ plan and the ministry initially agreed, the resulting plan was re-branded as a ‘reparation’ scheme. As it is expressly stated in the reparation guidelines, payments made should not be understood to represent compensation, nor to imply an assumption of state liability.⁴⁰ Moreover, participation in the reparation scheme does not foreclose the right to resort to domestic courts. Tribunals are merely reminded to take into account the amount of reparation granted under the DART scheme to liquidate damages in tort or statute.⁴¹

The DART reparation scheme was handled as a purely administrative process.⁴² Eligible applicants were all persons who were employed in the Australian Defence Force and alleged to have suffered abuse effected by Defence Force personnel, subject to certain deadlines for the presentation of the complaint.⁴³ Applications consisted of a reparation form, a personal account of the alleged abuse (and any related follow-up procedure exhausted within the Defence Force), and proof of identity. Reparation was not available for applications made regarding deceased persons.⁴⁴

The evidentiary standard required of applicants is worth careful analysis. The individual account of the abuse is expressly presumed to correspond to the ‘person’s personal experience of alleged abuse’ unless evidence emerges to contradict it.⁴⁵ Additional information might be sought from either the applicant or the Defence Force. The Defence Force’s failure to submit documents requested by the taskforce would result in a presumption that the Defence Force is unable to contradict the information provided by the applicant,⁴⁶ though it would ultimately be for the competent assessor⁴⁷ to form an opinion on the merits as to the ‘plausibility’ of the applicant’s allegations.⁴⁸ There is no classic treatment of the burden and standard of proof, nor is there a precise system of reversals; the assessor’s opinion, based on any available evidence, is the controlling criterion of any payment determination. In the words of the assessor:

The plausibility test was also pivotal in humanely considering complaints from many individuals who were aged, frail or in a vulnerable state of health or wellbeing or otherwise reluctant or unable to recount often very traumatic instances of abuse.⁴⁹

DART-awarded reparations were classified in pre-fixed amounts corresponding to the varying gravity of the alleged abuse.⁵⁰

The DART scheme, insofar as it did not preclude the victims’ access to judicial redress, is not a pertinent model for the Joint Scheme because it did not ensure legal peace. However, some of its features might be effectively transplanted. The system of pre-fixed reparation amounts relating to certain recurring abuses and the use of a flexible standard of evidence are two solutions that might fit well with the operation of a Joint Scheme.

IV. Other Compensation Schemes

1. Eritrea/Ethiopia

Within the regime of the Algiers Agreement, which put an end to the border war between Eritrea and Ethiopia, the parties provided for the establishment of an independent Claims Commission. Such a Commission was competent to decide through arbitration the claims brought by either state party, including claims made on behalf of individual citizens.⁵¹ The Commission’s jurisdiction extended, inter alia, on claims for damages relating to breaches of international humanitarian law committed during the conflict by either party.⁵² The Commission was entitled to draft its own rules of procedure.⁵³

Insofar as the Commission functioned as an arbitral tribunal, it does not seem to provide an adequate model for the Joint Scheme. The great advantage of the Joint Scheme would be that Germany does not object to the assumption of responsibility for the injustices perpetrated against IMIs. A review of compensation claims under the Joint Scheme would not implicate or require a determination of state responsibility for breaches of ius in bello or ad bellum—a determination that the Commission, controversially enough, resolved to make.⁵⁴ The Eritrea/Ethiopia experience, in other words, is mostly instructive a contrario. The Joint Scheme should not hinge itself on the ascertainment of Germany’s responsibility through judicial or arbitral proceedings but only on the administrative review of the pre-determined eligibility criteria of the applicants and their claims.

In one respect, however, the experience of the Claims Commission can be relevant. The Commission established, alongside single claims warranting ad hoc scrutiny on the merits, certain categories of claims for which a mass-claim procedure would be used instead. Applicants whose claims were aggregate into mass claims would be entitled to a fixed amount of compensation.⁵⁵ In essence, once state responsibility for a certain breach of international law is determined, a random sample of individual claims hinging on the invocation of that breach would proceed to a review on the merits. Through this exercise, the Commission would determine (within the sample) the percentage of claims supported by adequate evidence. It would then order compensation to all claimants in the class, reduced in amount to match that percentage.⁵⁶ For instance, if only 50% of claims in the sample are meritorious, each claimant in that class would receive half of the compensation owed.

Neither Ethiopia nor Eritrea used this mass-claim mechanism, a choice that revealed the limits of subjecting individual claims to state espousal and the constraints imposed by a severe deadline.⁵⁷ The state parties opted for a fast-track process with a predetermined conclusion date: they allowed 3 years for the exhaustion of all arbitration proceedings, and consequently envisaged a tight 1-year deadline to present the claims. These time constraints certainly had a chilling effect on the possibility to orchestrate mass claims.⁵⁸

The automatic reduction in the compensation paid to the individual applicants, commensurate with the percentage of unmeritorious claims in the sample, would likely have encouraged the states to exercise diligence in the collection and presentation of claims. A similar mechanism would be inherently unfair in a system where individuals can present the applications in their own name, a model that is most appropriate for a potential Joint Scheme. To the contrary, the adoption of a sample review might be an efficient solution, especially if applications share a common factual matrix and certain gateway issues are positively established for each claim (the identity of the claimant or the plausibility of their involvement in the chronological and geographical scenario of the injustice).

2. Iraq/Kuwait Reparations

After the end of the Gulf War of 1990–1991, the UN Security Council issued Resolution 687 in which it reaffirmed Iraq’s liability for all damages caused by the unlawful occupation of Kuwait.⁵⁹ It also called for the creation of a fund and a commission for the compensation of claims relating to such liability, including those brought by individuals.⁶⁰ The United Nations Compensation Commission (UNCC) was thus created.⁶¹ Some of its operational features are of interest to our current purposes.

In particular, the UNCC had jurisdiction over an enormous number of individual claims for damages up to US$100,000 (‘C’ claims, referring to its dedicated category). It noted in its first decision that ‘[t]he complexities associated with the processing of “C” claims, requiring the resolution of myriad legal, factual, evidentiary and valuation issues, are compounded by the massive number of claims in this category—in excess of 415,000’.⁶² Since these complexities are, in part, comparable to those with which a Joint Scheme might have to cope, if the eligibility criteria are wide enough, it is helpful therefore to observe the solutions adopted by the UNCC.

The UNCC started from an assumption of Iraq’s responsibility, and circumscribed its review to the issue of causality and quantum.⁶³ With a view to process all ‘C’ claims in an expedited way, the rules provided for the possibility to resort to a sample analysis of the merits of the individual claims.⁶⁴ The Panel of Commissioners, moreover, made its recommendations based on the documents submitted.⁶⁵ This approach suggested the possibility that full evidence would not be required for every claim; indeed, the applicable rule suggests that ‘C claims’ must satisfy a relatively low evidentiary threshold, and that the smaller claims among them might be treated even more leniently:

With respect to “C” claims, Article 35(c) of the Rules provides that the claims must be documented by appropriate evidence of the circumstances and amount of the claimed loss. Documents and other evidence required will be the reasonable minimum that is appropriate under the particular circumstances of the case. A lesser degree of documentary evidence ordinarily will be sufficient for smaller claims such as those below US$20,000.⁶⁶

The Panel of Commissioners, explaining what documents might suffice to achieve a ‘reasonable minimum’ of evidence, stressed the importance of the claim form—corroborated by the self-declaration of veracity of the applicant and the sanctions that domestic law attaches to false statements. Alongside the claim form, the Panel considered identification documents, personal and witness statements, and other documents that could be probative of the loss claimed.

The Panel, called to consider the ‘particular circumstances of the case’, in determining the standard of proof required, noted all the reasons, in the circumstances of the invasion, why the applicants might not have been able to withhold, conserve and present fuller evidence in support of their claims.⁶⁷ It was also noted that the scarcity of evidence in support of mass claims ‘is not a phenomenon without precedent’ in international practice. Therefore, the upholding of claims that, taken individually, present less than optimal evidentiary support is acceptable, owing to the circumstances in which the applicants had to gather the evidence and the nature of the UNCC’s mandate.⁶⁸

This is a lesson that might apply all the more plausibly to a hypothetical Joint Scheme, given that the general elements of the injustices attributed to Germany are known and that the applicants would probably not seek precise amounts of compensation relating to material losses. A Joint Scheme might be spared the difficult determination of causation and quantum that complicated the task of the UNCC. A system based on eligibility through status (eg, the applicant’s condition as IMI, or heir of a victim of mass killings) and pre-fixed compensation amounts would render the review of applications significantly easier.

3. Comfort Women

In December 2015, Japan and South Korea reached an agreement aimed ostensibly at resolving interstate tensions with regard to Japan’s practice of enforced prostitution during World War II (the so-called ‘comfort women’ phenomenon).⁶⁹ The issue of ‘comfort women’ has plagued relations between the two states for decades,⁷⁰ along with several other historical disputes,⁷¹ in part due to Japan’s unflinching stance.

Japan, indeed, has openly accepted only its ‘moral responsibilities’,⁷² and tried to assuage the victims through monetary contributions ex gratia channelled through a newly established Asian Women’s Fund (AWF). Such emoluments have not always been so well received; NGOs urged victims to boycott the AWF⁷³ and many survivors refused to accede the payments, noting Japan’s refusal to own up to its historical responsibility and provide full reparation.⁷⁴ In short:

The women who would become military sex slaves have uniformly indicated that they are unsatisfied with Japan’s engagement with the comfort women issue. This has been largely due to the lack of an apologetic stance by Japan. The consistent denial, acknowledgment, and then blaming the victims for the injustices experienced, has lent credence to the viewpoint that the Japanese government is insincere in its efforts to come to terms with the past.⁷⁵

Alongside an overdue acknowledgement of generic ‘responsibilities’,⁷⁶ and Japanese Prime Minister Shinzō Abe’s conveyance of ‘his most sincere apologies and remorse’,⁷⁷ the 2015 agreement contemplated a Japanese contribution of a modest sum (approximately US$8.8 million) towards the establishment of a Korean foundation supporting former comfort women. The Foundation for Reconciliation and Healing was effectively created in July 2016 and received the promised amount by the Japanese government. The Korean government looked after the payment of approximately US$18,000 to the families of deceased comfort women and US$90,000 to those still alive.⁷⁸ It might be worth noticing that, out of an estimated 80,000 to 200,000 victims, only 238 Korean women have come forward to register with the scheme, of whom just 46 were alive at the time of the 2015 agreement,⁷⁹ 37 in July 2017,⁸⁰ 31 in January 2018,⁸¹ 27 in November 2018,⁸² 22 in March 2019,⁸³ 19 in January 2020, and 17 in August 2020.⁸⁴

In spite of the payments, the deal attracted criticism in South Korea. It was widely perceived as a diplomatic defeat for Korea and as Japan’s successful attempt at resolving ‘finally and irreversibly’ the row with South Korea without trying to meaningfully engage either with the victims or with its own responsibility.⁸⁵ The deal came under severe scrutiny and the newly incumbent Korean government announced that it would revise its terms, causing the head of AWF to resign.⁸⁶ The impression that the agreement did not take into account the voice of the victims has been compounded by Japan’s attempts at silencing protests and condemning the erection of memorials. These actions are perceived as furthering an intention to erase the memory of the victims and, as a consequence, the country’s full assumption of past responsibility.⁸⁷ Japan’s refusal to issue a letter of apology after the 2015 agreement and South Korea’s refusal to remove statues paying tribute to comfort women installed in the vicinity of Japanese embassies paved the way for the current renewal of diplomatic tensions.⁸⁸

In late 2017, the Korean minister of foreign affairs requested a revision of the agreement, but his Japanese counterpart, hinting at its interstate nature, refused to re-open the deal:⁸⁹

The Japan–South Korea agreement is an agreement between the two governments and one that has been highly appreciated by international society (...). If the South Korean government (...) tried to revise the agreement that is already being implemented, that would make Japan’s ties with South Korea unmanageable and it would be unacceptable.⁹⁰

Korea back-pedalled somewhat on its threat to denounce the agreement, but refused to use the funds provided by Japan, opting instead to inject the necessary funds to replace them from its own budget.⁹¹

The 2015 agreement has been ‘effectively abandoned’⁹² and in December 2019 the Constitutional Court of South Korea has determined that, since it did not establish clear rights and duties for the two countries, it cannot be set aside for infringing on the victims’ constitutional rights. In January 2021, a Seoul Central District Court condemned Japan to pay approximately $92,000 each to the 12 surviving victims.⁹³ The non-agreement remains, and so does the disagreement between the two countries.

As of early 2021, Japan has not obtained irreversible closure, and the South Korean government has received criticism from its own citizens for its mishandling of the negotiation and having to pay its way out of the mess. Furthermore, the victims have expressed no feeling of satisfaction, and the citizens of both countries have grown increasingly uneasy about the issue. None of the sought-after goals of the agreement have materialized. The circumstances evince the faux pas of the respective state authorities, who have struck a deal without consulting nor paying meaningful considerations to the victims.⁹⁴

There are certain obvious differences between the Japan–South Korea tensions and the prospect of providing reparation to IMIs and other victims. The most evident is that Japan is hesitant to embrace its full responsibility and actively tries to erase the memory of the injustices (or at least what it believes to be exaggerated representations thereof), whereas Germany has unquestionably accepted legal responsibility for war crimes committed. This crucial difference might contribute to reducing the risk of a Joint Scheme being rejected by the beneficiaries on the grounds that it merely represents a buy-out. However, the lesson learnt from the fragile fate of the 2015 agreement is that the two states concerned must involve the victims or their representatives during the negotiation stage, and make sure that the outcome is at least reflective of their voices and acknowledges their requests. In this respect, the mere allocation of monetary awards might fall short of satisfactory reparation if the victims are cut out of the process. Reparation cannot function independently of reconciliation, and reconciliation is not solely an interstate matter.

There is, however, a striking similarity between the two scenarios. Given the shared factual taxonomy of the two underlying injustices (occurring between 80 and 70 years ago), the surviving victims are now few in numbers and are dying at an accelerating rate. A provision for the compensation of deceased victims’ families, at a reduced rate, might prove acceptable. Alternatively, the Joint Scheme might provide for the descendants’ right to seek full compensation on behalf of deceased IMIs if death occurred after a specific cut-off date, which might very well be set in the past (eg 2004, the date of the first Ferrini judgment,⁹⁵ or February 1999, the cut-off date established in the RRF Law). Safeguards such as these would defuse the obnoxious result that any delay in fulfilling the moral duty of providing reparation might directly diminish the burden of its realization, due to the shrinking pool of beneficiaries.

4. The US/France Agreements on Banks and Railroad Deportees

a) The 2001 Banks Agreement

In 2001, France and the US stipulated an agreement regarding the restitution of sums held on bank accounts opened with certain French banks that had been frozen as a result of anti-Semitic legislation (the Washington Agreement).⁹⁶ France committed to obtaining from the banks a US$100 million contribution for a dedicated foundation.⁹⁷ The banks also committed themselves to pay restitution claims approved by the Commission for the Compensation of Victims of Spoliation (Commission pour l’indemnisation des victimes de spoliations, or CIVS).⁹⁸ The US pledged to inform US courts that any claims against the French banks should be dismissed as contradicting US foreign policy interests,⁹⁹ effectively designating the CIVS procedure as the preferred avenue for such claims.¹⁰⁰

Annex B to the Washington Agreement defined the working procedure of the CIVS as one of considering the individual claims. Of particular interest is the indication that ‘[t]he Commission will investigate and consider claims on relaxed standards of proof. A claimant’s application or a simple inquiry by the claimant to the existence of a bank asset is sufficient to trigger an investigation’.¹⁰¹ The operation of this relaxed standard of proof is further explained when the recommendation powers of the Commission are addressed:

Following such an investigation and after communication with the claimant or their representative (…) if an account can be verified by any means, including because the claim matches a name or account on a list or other document available to the Commission, the Commission makes a recommendation on an award together with the reason(s) for that recommendation (…) the Commission will recognize as sufficient evidence to make an Award any of the following four categories: proof, presumption, indication, and intimate personal conviction.¹⁰²

In other words, the Commission procedure hinged on a highly favourable standard of proof (‘any means’ including a plausible affidavit by the applicant¹⁰³ could be sufficient to demonstrate the existence of an expropriated account) and a favourable burden of proof (the evidence might be provided by the CIVS itself rather than by the applicant). First instance decisions by the CIVS could be appealed.¹⁰⁴

The scheme was strictly restitutory in nature, and the Commission was not entitled to reduce the amount of compensation for any reason other than double recovery:¹⁰⁵ the balance on the accounts would have to be repaid in full, subject to certain rounding adjustments. Until 2005, it was also possible to receive compensation of up to US$3,000 merely on the basis of an affidavit, even if the Commission was unable to ascertain the existence of the account claimed by the applicant.¹⁰⁶

Since the claims submitted to the CIVS under the Washington Agreement were only for restitution, the scheme might be a poor template for any future Joint Scheme, which would presumably focus on reparation or quasi-compensation. However, the technical provisions relating to the evidentiary regime used by the CIVS to review claims are worth taking into account, as they aimed at addressing evidentiary complications that are similar to those the IMIs and other victims might encounter.

The imposition of forced labour or the occurrence of mass killings, similar to the blocking of the French bank accounts, is not a controverted fact; several decades have passed since the unjust actions occurred and the affected individuals’ age and personal history might undermine attempts to retrieve a full documentation of the harms suffered. In this respect, the value of individuals’ affidavits as presumptive evidence is a possible solution that would respond to the need to afford applicants with fair treatment in the operation of a Joint Scheme for compensation.

b) The 2014 Railroad Deportees Agreement

In December 2014, the governments of France and the US stipulated an agreement regarding the treatment of certain holocaust victims—those deported from French territory who had not been covered by previous reparation schemes.¹⁰⁷

The explicit purpose of the agreement and the compensation mechanism established therein was to achieve ‘legal peace’ with respect to all claims against France asserted in US courts.¹⁰⁸ France pledged US$60 million to a US account, from which the US government would draw funds to pay individual claimants. In return, the US would recognize French immunity, terminate legal actions pending in US courts and ensure that the beneficiaries of the compensation schemes would execute waivers of further action against France.¹⁰⁹ The US and its affiliated authorities would take full responsibility for the distribution of the funds to the victims and establish the appropriate procedure without French input;¹¹⁰ the US established a Deportation Claims Program that is currently processing claims.¹¹¹

The programme reaches widely ratione personae. Alongside those individuals deported from France who remain alive, the programme covers their spouses and thus envisages two main categories of beneficiaries: survivors and surviving spouses. Furthermore, estates (heirs or assigns) of either category are entitled to receive compensation if the death occurred between 1948 and the date of the application. Subject to the territorial link inherent in the requirement of deportation from France, there is no nationality requirement. Whilst the incompatibility of the programme with other pre-existing compensation schemes rules out claims from citizens of certain nationalities,¹¹² anyone can apply (ie, not just US nationals).

The US provided applicants with a statement of claim form, which required them to provide ‘all available identifying information and documentation regarding the relevant individual’s deportation from France during World War II, including if possible the date, convoy, and place of departure and arrival of such deportation’. The form also reminded applicants of the criminal implications in making a false statement.

The amount of compensation envisaged was significantly higher than those awarded in the schemes discussed thus far. According to the estimates released by the claims programme, survivors would receive US$204,000 and all surviving spouses whose deported spouse died prior to 1948 would receive US$51,000. Surviving spouses of deportees who died in or after 1948 would receive US$750 for each year after the deportee’s death. Estates of survivors or surviving spouses would receive a fraction of the amounts above, calculated on the period of survival of the eligible individual during the 1948–2015 period.¹¹³

A comment on the size of the payments is in order.¹¹⁴ The negotiating history shows that the allocated amount of US$60 million was arrived at by knowing an estimate of the number of beneficiaries (486) and that the resulting average compensation of US$100,000 would correspond to roughly 3 years of disability pension under French law.¹¹⁵ Though it is difficult to assess the congruity of these calculations in the abstract, it is possible to note their large relative amount, as well as the low number of expected beneficiaries, which permitted the adoption of a quasi-compensatory approach (as opposed to the merely reparatory scheme adopted, for instance, in the RRF Law).

This scheme is interesting because it has a residual character: it expressly covers beneficiaries that were excluded from previous schemes. In this light, it might be comparable to a future Joint Scheme insofar as the latter would essentially cover IMIs and other victims expressly excluded from the application of the 2001 RRF Law.

V. A Ten-Step Sketch of a Future German-Italian Joint Scheme

The previous sections sought to provide an overview of selected payment schemes. While the comparative analysis is beside the point (as the schemes differ widely along several variables), it is nonetheless possible to identify certain solutions that, with all due caution, appear appropriate also for the Joint Scheme. In what follows, I recapitulate some of the lessons learnt from this anthological survey into a ten-step sketch.

1. Reparation or Compensation

The Joint Scheme would plausibly grant reparation falling short of full compensation. A reasonable approach would be to consider it an extension of the RRF payment scheme. Since the whole IMI issue apparently flows from war prisoners being excluded from the RRF Law, a reliable starting point would be to ensure that the Joint Scheme produces the effects that the RRF Law could have produced had it applied to IMIs. Along these lines, it might be helpful to recall the number of IMI applications that were rejected under the RRF scheme if we are to have a working estimate of the number of beneficiaries of the Joint Scheme.¹¹⁶ Full compensation might be an ambitious but impracticable target, let alone a conceptually thorny issue when (and if) reserved to heirs and descendants.¹¹⁷ The express language of the DART scheme, which opted for the reparation label, could serve as a template.

2. Funding

That Germany and Italy will both contribute to the finances of the Joint Scheme can at this stage only be assumed. Multi-source funding is not unprecedented (the German government and industry both supported the RRF Fund, for instance) and would facilitate the accumulation of a decently sized budget. Ideally, Germany would pledge to match Italy’s contribution, so that an example of virtue rather than strained negotiations might ensure the scheme’s financial capacity. An alternative method of quantifying the contributions to the fund, suggested by Jörg Luther,¹¹⁸ could be to measure them against the size of the respective national populations (roughly 82 million for Germany and 60 million for Italy). A raw equivalence of 1 person = €x would be tenable and acknowledges population differences between the two countries in setting the criterion for a comparable economic contribution. With x = €1, this calculation would roughly amount to a €140 million fund, which could ensure the payment of roughly €1,000 to a number of claimants similar to those who saw their applications rejected under the RRF Law.¹¹⁹ It appears preferable that x > 1 (see next step), unless the estimated number of applicants is much lower. Interestingly, in one twist of the Japan–South Korean feud over the issue of comfort women, Korea has strived to increase the legitimacy of the reparation scheme by unilaterally financing the budget and announcing that the funds provided by Japan will not be used. In other words, the contribution from the state to whom the nationality of the victims belong is a powerful gesture: it avoids the impression that any agreement between the states reflects a political sell-out.¹²⁰

3. The Amount Paid to Each Victim

It is perhaps inevitable that IMIs and other victims receive a lump sum rather than compensation reflecting the specific damage suffered. Most systems described above adopt this lump-sum approach and the benefits in terms of expediency seem to outweigh a concern for accuracy, insofar as fair treatment is assured to all applicants. It is difficult to tell whether the system should envisage only one lump sum or a range of amounts, corresponding to several types of injustice suffered (for instance, long-lasting conditions caused by forced labour might warrant a more generous reparation). The DART and RRF schemes opted for graduated amounts, but the latter essentially lumped all victims into two macro-groups (‘concentration camps’ and ‘others’). The reparation offered to comfort women was also undifferentiated in amount. In the interest of expediting the processing of claims, the adoption of a one-size-fits-all quantum should be favourably considered. As to the magnitude of the payment, it will inevitably depend on the size of the available fund and the number of eligible applicants. Of the schemes described above, the ones that directly provided reparation for personal harms (rather than restitution) converged around a figure of US$50,000 (the DART scheme, the reparation offered to comfort women, and railroad deportees), but the number of eligible individuals was much smaller than that of eligible IMIs and other victims. A lump sum in the €10,000–€20,000 bracket might be considered fair given the circumstances. A system of partial payment mechanisms could be set up, when the estimate of the number of applicants is particularly difficult and, accordingly, the amount available to each is difficult to pin down in advance. Partial payments could ensure the possibility of paying late applications and prevent the premature depletion of funds when the number of applicants is unexpectedly high or the available budget is insufficient to cover full payment to every applicant. Once all applications are processed, the residual funds can be distributed to make up for what reparations remain, or even fund further projects if any money is left unallocated.

4. The Management of the Fund and the Organs Overseeing Its Distribution

Again, it might be worth looking at the RRF scheme as a template. The Joint Scheme would be run by a body participated in equal measure by the German and Italian governments, that might decide to integrate its structure with representatives from civil society, victims’ associations, and technical experts. The body tasked with the review of applications and liquidation of claims would reflect this balanced make-up, and operate as an administrative office, as in the DART experience, with an internal capacity to perform, upon request, the review of individual decisions.

5. The Eligibility Criteria

Specific criteria should be drafted to ensure that beneficiaries correspond to the categories left out of the RRF Law: primarily war prisoners subjected to forced labour, but other internees and victims of mass killings should also be included. Limiting reparation to Italian citizens (unlike the French banks scheme) might be understandable since Italy would be responsible for the Scheme’s funding. A possibility worth discussing is that claims be aggregated into mass claims (as in the Eritrea/Ethiopia scheme), or at least that the governing body make available partially pre-filled application forms for prospective applicants. Forms could be divided into categories, according to the distinguishing features of the crime at stake and the factual coordinates (provenance of the applicant, timeframe, location, and conditions of the killing/internment/forced labour). The Joint Scheme would have the same advantage as the UNCC, which reviewed the claims against Iraq: the issue of responsibility would not be in question. Since the Joint Scheme would most probably warrant reparation rather than compensation for specific damages, the issue of causation and the determination of quantum would also be minimized in the proceedings. A mere scrutiny of eligibility could suffice.

6. The Treatment of Heirs

The notion of descendants being eligible for compensation is not immediately intuitive. On the one hand, it defies the immediate realization that compensation should benefit the individual harmed and provide a modicum of relief for the direct victim rather than material enrichment for their family. On the other hand, two circumstances might militate in favour of providing reparation to heirs as a means to achieve fairness. First, the death of the victim might be a precise consequence of the injustice—especially in the case of mass killings, but also when the suffering of forced labour takes a permanent toll on a person’s health. Second, the legal deadlock has inevitably entailed that the death of multiple victims might have occurred before the granting of reparation, which is an odious side effect of the slow course of justice (a second-order instance of injustice). In that light, ‘the rough intuition is that, in strictly comparative terms, there is no better stand-in for the deceased payees—a view that seems vague and difficult to defend, but that strikes many as superior to the alternative of awarding no money at all’.¹²¹ Moreover, relatives of the Italian victims have arguably suffered directly from the crimes committed, especially those causing death or permanent bodily harm. In some respect, therefore, the heirs are also direct victims of the injustice. The Joint Scheme would be too little too late, but it could be understood as a form of ‘rough justice’¹²² and its shortcomings might be acceptable if certain safeguards were implemented. One such safeguard concerns the eligibility of heirs: Italian victims are either dead or elderly. Without a specific mechanism to avoid delays frustrating its goal, the whole exercise would be emptied of meaning. If anything, this scenario would exacerbate rather than remedy the injustice. Reduced payments to victims’ heirs and assigns are common (for instance, consider the calculation used in the liquidation of US/French Railroad Deportees’ claims and the pay-outs to the families of Korean comfort women) and might represent an acceptable compromise. Another solution might be to establish a cut-off date (for instance, February 1999, on the model of the RRF scheme) and allow the heirs to claim reparation on behalf of eligible persons deceased thereafter.

7. The Standard and Burden of Proof

One recurring feature of the payment schemes described above is the bestowment upon the claimants of evidentiary duties that are softer than normally expected in litigation (see, eg, the UNCC, the DART, the Eritrea/Ethiopia scheme and the US Banks and Railroads schemes). This staple of reparation processes is certainly fit for the Joint Scheme. More to the point, Germany could pledge to retrieve the applications filed with the RRF competent organizations by IMIs and process their claims automatically. In any event, applicants shall be expected to provide evidence of their identity and nationality and a template form reporting their account of the relevant circumstances of internment and forced labour. The form might facilitate the task by providing some pre-determined choices as regards places and dates, relating to known historical patterns of wrongdoing and documented flows of IMIs and other forced laborers. Applicants should be warned of the sanctions attached to the making of false statements; conversely, their affidavits, if complete, plausible and not contradicted, should warrant reparation even in the absence of other supporting documentation.

8. The Involvement of Victims

The Joint Scheme should include specific safeguards for offering satisfaction to the Italian victims, besides and independently of any monetary payment.¹²³ Specific means to do so could include: issuing official declarations and individual letters to restore the victims’ dignity and assume responsibility (possibly, and when appropriate, on the part of both states), establishing commemorations and tributes to the victims, and including an account of the injustices in educational materials.¹²⁴ It is equally important that the victims—possibly through the representative associations—are consulted during the negotiation stage and subsequently involved in the governance of the scheme. Involvement of victims might be the critical element making an otherwise unpalatable payment acceptable.¹²⁵ The offer of multiple non-monetary remedies proved beneficial in the DART scheme and catered effectively to the victims’ fundamental need for closure and reconciliation.¹²⁶ The opposite might be said of the comfort women scheme, in which monetary reparations were perceived to be unsatisfactory by some of the victims and a large share of South Korean public opinion. As Korea and Japan have learnt the hard way, memory and respect for victims might save the day when reparation cannot make the victims whole.¹²⁷

9. Legal Peace

Germany will likely insist on the insertion of language specifying that any payment under the Joint Scheme would be made out of comity and a sense of moral and historical justice, rather than under any legal obligation. Moreover, in the current scenario Germany is satisfactorily shielded from individual actions by the law of sovereign immunity. Nonetheless, it would be reasonable to consider the Joint Scheme an adequate opportunity to provide legal peace to Germany from the claims of Italian victims brought before any alternative forum.¹²⁸ The system of individual waivers, state commitment to redirect court actions and express relinquishment, common to some of the schemes described above (check, in particular, the language of the two US/French agreements), would serve as an appropriate model for the Joint Scheme.

10. Speed

This element explains itself. Beating around the bush is an indecent strategy given the age of the victims who are still alive.