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Reparation for violations of international humanitarian law

Published online by Cambridge University Press:  25 February 2011

Emanuela-Chiara Gillard
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Résumé

La dernière moitié du XXe siècle a été marquée par une augmentation et une codification sans précédent des normes du droit international ayant pour objet la protection de la personne humaine. Il s'agit aujourd'hui de veiller au respect de ces règles. Les réparations pour violations du droit international humanitaire peuvent largement contribuer à mieux le faire respecter et à prévenir toute violation future.

Une branche du droit est renforcée si, en cas d'infraction, des réparations peuvent être obtenues; celles-ci constituent un aspect important de l'application du droit et peuvent avoir un important effet dissuasif. À un niveau plus personnel, les victimes de violations du droit international humanitaire sont extrêmement vulnérables. Des réparations adéquates et reçues au moment opportun peuvent jouer un rôle important pour aider les victimes à reconstruire leur vie. Cet article examine le droit en vigueur et la pratique actuelle en matière de réparations pour viohtions du droit international humanitaire, en insistant plus particulièrement sur la situation juridique des victimes.

Cet examen des lois et des mécanismes nationaux et internationaux révèle que, si le droit aux réparations est universellement reconnu, en l'absence de mécanismes spécifiques — qui existent généralement au niveau international — les victimes sont incapables de faire valoir leurs droits sur le plan individuel et, en conséquence, n'obtiennent aucune réparation. L'article conclut par des questions plus politiques que posent les différents mécanismes existants et la façon dont les compensations à accorder aux victimes de violations du droit international humanitaires sont envisagées.

Type
Research Article
Information
International Review of the Red Cross , Volume 85 , Issue 851: Les victimes après la guerre: action humanitaire, réparation et justice/Victims after the war: humanitarian action, reparation and justice , September 2003 , pp. 529 - 553
Copyright
Copyright © International Committee of the Red Cross 2000

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References

1 Permanent Court of International justice, Factory at Chorzow (Claim for Indemnity) case, (Germany v. Poiana), (Merits), PCIJ (ser. A) No. 17, 1928, p. 29. See also Article 1 of the Articles on the Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001: “Every internationally wrongful act of a State entails the international responsibility of that State.” UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001 (hereinafter “ILC Articles on State Responsibility“).

2 See Articles 31 to 34 ILC Articles on State Responsibility, op. cit. (note 1). See also the 2000 draft of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, UN Doc. E/CN.4/2000/62, 18 January 2001, (hereinafter “draft Basic Principles and Guidelines“). These draft principles, elaborated by two independent experts pursuant to a request by the Commission on Human Rights, have not yet been finalized or adopted.

3 See Article 35, ILC Articles on State Responsibility, op. cit. (note 1). Principle 22 of the draft Basic Principles and Guidelines (op. cit., note 2) gives the following examples of restitution: restoration of liberty, legal rights, social status, family life and citizenship; return to one's place of residence; and restoration of employment and return of property.

4 See Article 36, ILC Articles on State Responsibility, op. cit.(note 1). Principle 23 of the draft Basic Principles and Guidelines (op. cit., note 2) states that compensation should be provided for any economically assessable damage and gives the following examples of such damage: physical or mental harm, including pain, suffering and emotional distress; lost opportunities, including education; material damages and loss of earnings, including loss of earning potential; harm to reputation or dignity; and costs required for legal or expert assistance, medicines and medical services, and psychological and social services.

5 See Article 37, ILC Articles on State Responsibility, op. cit. (note 1). Principle 25 of the draft Basic Principles and Guidelines (op. cit., note 2) sets out an extensive list of possible forms of satisfaction and gua rantees of non-repetition. These include the cessation of continuing violations; the verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others; the search for the bodies of those killed or dis appeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities; an official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim; an apology, including public acknowledgement of the facts and acceptance of responsibility; judicial or administrative sanctions against persons responsible for the violations; commemorations and tributes to the victims; the inclusion of an accurate account of the violations that occurred in international human rights and humanitarian law training and in educational material at all levels; as well as measures for the prevention of the recurrence of violations.

The draft Basic Principles and Guidelines (op. cit. note 2) include an additional form of reparation: rehabilitation. Principle 24 provides that rehabilitation should include medical and psychological care as well as legal and social services.

6 For an excellent and exhaustive study of law and practice on violations of international humanitarian law, and indeed on “war reparation” more generally, see d'Argent, P., Les réparations de guerre en droit international public: la responsabilité internationale des Etats à l'épreuve de la guerre, Bruylant, Brussels, 2002Google Scholar and references therein.

7 Other instruments also expressly refer to an obligation to make reparation. For example, Article 19 of the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearances provides that the victims of acts of enforced disappearance and their family have the right to adequate compensation, including the means for as complete a rehabilitation as possible. It further stipulates that “in the event of the death of the victim as a result of an act of enforced disappearance, their dependants shall also be entitled to compensation”, UN Doc. A/47/49, 18 December 1992.

8 See, for example Article 3 of the Protocol to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which provides that:

“each Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the [prohibition on exporting cultural property from occupied territory during an armed conflict].“

Similarly, the peace treaty concluded in 1955 between Austria and France, the Soviet Union, the UK and the US contains extensive provisions on restitution of property, (Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, France and Austria: State Treaty for the Re-establishment of an Independent and Democratic Austria (with Annexes and Maps), 15 May 1955, United Nations Treaty Series, Vol. 217, No. 2949).

9 By way of example, see the 1952 Convention on the Settlement of Matters Arising out of the War and the Occupation between the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and Germany in which, inter alia, Germany acknowledged:

“the obligation to assure … adequate compensation to persons persecuted for their political convictions, race, faith or ideology, who thereby have suffered damage to life, limb, health, liberty, property, their possessions or economic prospects (excluding identifiable property subject to restitution). Furthermore, persons persecuted by reason of nationality, in disregard of human rights, who are now political refugees and no longer enjoy the protection of their former home country shall receive adequate compensation where permanent injury has been inflicted on their health.” (Article 1(1), Chapter Four) (United Nations Treaty Series, Vol. 219, No. 4762)

See also the 1955 State Treaty for the Re-establishment of an Independent and Democratic Austria (with Annexes and Maps), between France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Austria, and acceded to by Australia, Brazil, Canada, Czechoslovakia, Mexico, New Zealand, Poland and Yugoslavia, Article 26(1) of which provides that:

“1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since 13 March 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.“

(United Nations Treaty Series, Vol.217, No. 2949)

In the 1959 Agreement concerning Payments on behalf of Norwegian Nationals Victimized by National Socialist Persecution between the Federal Republic of Germany and Norway, the Federal Republic of Germany agreed to:

“pay the Kingdom of Norway 60 million Deutsche Mark on behalf of Norwegian nationals who were victimized by National Socialist persecution because of their race, beliefs or opinions and whose freedom or health was in consequence impaired, and also on behalf of the survivors of persons who died as a result of such persecution.“

(Article 1(1)) [United Nations Treaty Series, Vol. 222, No. 5136)

10 See, for example, Article 14(a) of the 1951 Treaty of Peace between the Allied Powers and Japan, San Francisco, 8 September 1951, in which Japan undertook to “pay reparations to the Allied Powers for the damage and suffering caused by it during the war” (American Journal of International Law, Supplement: Official Documents, Vol. 46, 1952, p. 71).

11 Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, 12 December 2000, Article 5, International Legal Materials, Vol. 40, 2001, p.260.

12 Investigation of alleged violations and access to justice for the victims are remedies for the violations. According to Principle 11 of the draft Basic Principles and Guidelines (op. cit., note 2) remedies for violations of international human rights and humanitarian law include the victim's right to access justice; reparation for harm suffered; and access to factual information concerning the violations.

13 Organized armed groups have undertaken to make reparations for violations of international humanitarian law in very few cases. One example is the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines, concluded in 1998 between the government of the Philippines and the National Democratic Front of the Philippines, which expressly provides for indemnification of the victims of violations of international humanitarian law by both parties to the conflict. Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines of 16 March 1998 available at www.incore.ulst.ac.uk/cds/agreements/pdf/phil8.pdf

Also, although it did not actually pay any compensation, in 2001 a provincial arm of the Ejército de Liberación Nacional (ELN) in Colombia publicly apologized for the death of three children and the destruction of civilian houses as a result of an armed attack. The ELN expressed its deep and sincere condolences to all those who had been affected by the explosion and expressed its willingness to collaborate in the recuperation of the remaining objects. (ELN, Head Office, Area Industrial, Communiqué relative to the events of 9 August 2001).

14 Article 16 of the 1951 Treaty of Peace between the Allied Powers and Japan, San Francisco, op. cit. (note 8). The same approach was adopted in the Yoshido-Stikker Accord of 1956 between Japan and the Netherlands in respect of the former's occupation of Dutch East India.

15 See, also Principle 15, draft Basic Principles and Guidelines, op. cit. (note 2).

16 See, for example, Article 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol 11 and Article 63(1) of the American Convention on Human Rights. Such awards have included material losses (e.g. loss of earnings and medical expenses) and non-material damage (e.g. pain, suffering and humiliation). See, generally, Shelton, D., Remedies in International Human Rights Law, Oxford University Press, Oxford, 1999.Google Scholar

17 See, for example, Article 2(3) of the International Covenant on Civil and Political Rights and more specifically Articles 9(5) and 14(6), which expressly provide that anyone unlawfully arrested, detained or convicted shall have an enforceable right to compensation, Article 14 of the Convention against Torture and Article 6 of the Convention on the Elimination of Racial Discrimination.

18 See, for example, Expert Opinion by Professor Frits Katshoven, “Article 3 of the Convention (IV) respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907”, Expert Opinion by Professor Eric David, “The direct effect of Article 3 of the Fourth Hague Convention of 18th October 1907 respecting the Laws and Customs of War on Land” and Expert Opinion by Professor Christopher Greenwood, “Rights to compensation of former prisoners of war and civilian internees under Article 3 of the Hague Convention No. IV, 1907”, all in Fujita, H., Suzuki, I. and Nagano, K. (eds.), War and the Rights of Individuals: Renaissance of Individual Compensation, Nippon Hyoron-sha, Tokyo, 1999.Google Scholar

19 International Herald Tribune, November 1998, p. 4. In debates in the parliaments of the Netherlands and the UK, government officials have upheld Japan's position.

20 Since hierarchically all States are equal, the courts of one State cannot stand in judgment on the actions of another State and traditionally national courts have been reluctant to deviate from this principle, which is the basis of sovereign immunity, even in cases relating to serious violations of human rights and international humanitarian law. The position of international tribunals is different, as States have either agreed to their jurisdiction or it has been imposed upon them by a Security Council resolution.

21 Shimoda, et al. v. The State, District Court of Tokyo, ludgment of 7 December 1963, International Law Reports, Vol. 32, 1964, p. 626.Google Scholar

For a recent application of this approach see X, et al. v. the State of Japan, Tokyo High Court, Judgment of 7 August 1996Google Scholar, Japanese Annual of International Law, Vol. 40, 1996, pp. 117 and 188 (claims by former civilian internees from the Netherlands and the UK and by Filipino “comfort women“). See also Goldstar, (Panama) SA v. United States, US Court of Appeals, Fourth Circuit, 16 June 1992, International Law Reports, Vol. 96, 1992, p. 55Google Scholar, where the court held that Article 3 of the 1907 Hague Convention does not explicitly provide for a privately enforceable cause of action for victims of violations of international humanitarian law) and Princz v. Federal Republic of Germany, US District Court for the District of Colombia, 813, F. Supp. 22 (1992) and US Court of Appeals for the District of Columbia, 307 US App DC 102, 26 F.3d 1166 (1994).

22 Personal Injuries (Occupied Germany) case. Administrative Court of Appeal of Münster, 9 April 1952, International Law Reports, Vol. 20, 1952, p. 632; Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997; Court of First Instance of Leivadia, 30 October 1997, American journal of International Law, Vol. 92, 1997, p. 765; Case N0.11/2000, Hellenic Supreme Court, 4 May 2000.

Subsequent developments in the latter case highlight the further difficulties that may be encountered by victims when they try to enforce a successful claim. The Greek Supreme Court rendered a default judgment against Germany and awarded damages. However, according to Greek law, the authorization of the government is required for such a judgment to be enforced by the seizure of the assets of a foreign State and in this instance the Greek government refused to give the necessary authorization.

The plaintiffs then tried to enforce their judgment before the German courts on the basis of a bilateral agreement for the enforcement and recognition of judgments. In June 2003 the German Supreme Court refused to recognize the Greek judgment on the ground that the Greek courts did not have jurisdiction, as the acts in question — reprisals against civilians during the Nazi occupation of Greece — were sovereign acts and were thus covered by sovereign immunity.

The Supreme Court went on to consider an agreement concluded between Greece and Germany in September 1990. While this constituted a final settlement of reparations claims arising from the Second World War the Court ruled that it did not preclude legal claims by individual citizens.

However, it then held that in reviewing any such claims it had to apply international law as it was in 1944. In view of this, the Court concluded that the plaintiffs did not have a cause of action for damage resulting from Nazi Germany's violation of the laws of war because in 1944 international law did not provide individuals with a cause of action but conferred it exclusively upon States by means of the right of diplomatic protection.

23 German Supreme Court, Distomo Massacre case, BGH-III ZR 245/98, 26 June 2003.Google Scholar

24 One recent example of a mixed claims commission is the Iran-US Claims Tribunal established as part of a series of treaties — the so-called Algiers Accords — concluded by Iran and the US in 1981. The tribunal has jurisdiction over the claims of US nationals against Iran and of Iranian nationals against the US outstanding at the date of the accords and arising out of debts, contracts, expropriations or other measures affecting property rights. It also has jurisdiction over the claims of the two governments against each other arising out of contractual agreements for the purchase and sale of goods and services. (Article II(1) and (2), Claims Settlement Declaration, 19 January 1981.)

25 No mechanisms have been established to deal specifically with the restitution of property taken in violation of international humanitarian law. The issue has been addressed, however, mainly with regard to art confiscated by the Nazi regime and States have recognized the need to reach a fair and just solution. See, for example, the principles adopted by the 44 States participating in the Washington Conference on Holocaust-Era Assets of December 1998, available at <www.lootedartcommission.com/lootedart_washingtonprinciples.htm>.

26 For an account of the UNCC's work see elsewhere in this Review: Wooldridge, F. and Elias, O., “Humanitarian considerations in the work of the United Nations Compensation Commission”.Google Scholar See also: Heiskanen, V.“The United Nations Compensation Commission” in The Hague Academy of International Law, Collected Courses, Vol. 296, 2002, pp. 259 ff.Google Scholar

27 UN Security Council resolution 687, 3 April 1991, para. 16.

28 Strictly speaking, individuals do not file their claims directly with the UNCC but are required to submit them to their State of nationality, which then files them with the Commission. Unlike in cases of diplomatic protection, however, States do not espouse the claims of their nationals. Instead, the role of the State is purely administrative.

29 UNCC, UN Doc. S/AC.26/1991/1, Governing Council Decision 1, Criteria for expedited processing of urgent claims, 2 August 1991, para. 18.

30 UNCC, UN Doc. S/AC.26/1992/11, Governing Council Decision 11, “Eligibility for Compensation of Members of the Allied Coalition Armed Forces”, 26 June 1992. In view of this decision, in its second report the “category B” panel of commissioners awarded compensation inter alia to members of the Allied Coalition Forces who had been taken prisoner of war by Iraq and who had been subjected to beatings to obtain information, in violation of the Third Geneva Convention (Report and Recommendations made by the Panel of Commissioners concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category “B” Claims), 15 December 1994, UN Doc S/AC.26/1999/4, para. 14.

31 Eritrea-Ethiopia Claims Commission, Partial Award, Prisoners of War, Eritrea's Claim 17, 1 July 2003 and Partial Award, Prisoners of War, Ethiopia's Claim 4, 1 July 2003.

32 Eritrea-Ethiopia Claims Commission, Decision Number 3: Remedies, 24 July 2001.

33 Eritrea-Ethiopia Claims Commission, Partial Award, Prisoners of War, Eritrea's Claim 17, op. cit. (note 32), para. 78.

34 See, for example, the 1952 Law on the Equalization of Burdens as amended; the 1953 Law for the Compensation of the Victims of National Socialist Persecution as amended; the 1957 Federal Restitution Law as amended; the 1969 Law on the Reparation of Losses as amended; the 1990 Law on the Settlement of Open Property Matters as amended; and the 1994 Law on Indemnification of Victims of Nazism as amended.

35 The Law on the Creation of a Foundation “Remembrance, Responsibility and Future”, Germany, 2 August 2000. Other examples include the programme established in Canada in 1988 to compensate Canadian nationals of Japanese descent for their forced removal and internment during the Second World War. As “symbolic redress” the Canadian government offered CAN$ 21,000 for each person of Japanese ancestry who was subjected to internment, relocation, deportation, loss of property or otherwise deprived of full enjoyment of fundamental rights and freedom solely on the basis of his/her Japanese ancestry. (Agreement between the Government of Canada and National Association of Japanese Canadians, Japanese Canadian Redress Agreement, 22 September 1988.) In the same year, the US passed a law with the similar aim of acknowledging the fundamental injustice of the evacuation, relocation and internment of US citizens and permanent resident aliens of Japanese ancestry during the Second World War; of officially apologizing for such treatment and of making restitution to the internees. Under the Act each eligible individual was entitled to US$20,000; the restitution of any position, status, or entitlement lost because of any discriminatory act by the government and the review of any conviction based on wartime legislation (Civil Liberties Act (1988), 10 August 1988, Public Law 100–383, [H.R.442], paras 1, 102–104,108).

36 The General Framework Agreement for Peace in Bosnia and Herzegovina, Dayton, initialled on 21 November 1995 and Paris, signed on 14 December 1995, Annex 7, Agreement on Refugees and Displaced Persons, Article 1.

37 van Houtte, H., “Mass property claim resolution in a post-war society: the Commission for Real Property Claims in Bosnia and Herzegovina”, International and Comparative Law Quarterly, Vol. 48, 1999, p. 632.CrossRefGoogle Scholar In the period from the beginning of its operations in March 1996 to the end of February 1999 the commission had registered over 126,000 claims relating to almost 160,000 properties. It is expected that up to 500,000 claims may be submitted.

38 Dodson, A. & Heiskanen, A., “Housing and Property Restitution in Kosovo” in S., Leckie (ed.), Returning Home: Housing and Property Restitution Rights and Internally Displaced Persons, Transnational Publishers, New York, 2003.Google Scholar Further information and statistics are available on the website of the Housing and Property Directorate: <http://www.hpdkosovo.org.>

39 The four Geneva Conventions and Additional Protocol I establish a system of individual criminal responsibility for persons suspected of war crimes (GC I, Article 50; GC II, Article 51; GC III, Article 130; GC IV, Article 147; and PI, Article 85). The focus is on persecution by national courts. States are required to criminalize, under national law, certain violations of international humanitarian law and to prosecute or extradite persons suspected of these crimes. Although the treaties are silent about the possibility of requiring violators to make reparation to their victims, in the context of these national prosecutions there is nothing to prevent the ordinary national law procedures and rights-such as the concept of partie civile discussed below-from applying. While ordinarily an obligation to make reparation would require a finding of criminal responsibility, there may be other mechanisms at national law under which victims may obtain redress from violators, such as, for example, the US Alien Tort Claims Act, which is a civil remedy. As discussed below, at the international level the Statute of the International Criminal Court expressly foresees the possibility of violators being ordered to pay compensation.

See also Principle 17 of the draft Basic Principles and Guidelines, op. cit. (note 2), which envisages the possibility of compensation being paid by a party other than a State.

40 Rule 105B of the ICTY Rules of Procedure and Evidence provides that “pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation”.

41 Article 23(3) of the Statute of the ICTR repeats verbatim the provisions of Article 24 of the Statute of the ICTY, and Rules 105 and 106 of its Rules and Procedure and Evidence.

42 Statute of the Special Court for Sierra Leone (2002), Article 14.

43 Ibid., Article 19.

44 ICC Statute (1998), Article 75.

45 UN, Report of the Preparatory Commission for the International Criminal Court, Addendum, finalized draft text of the Rules of Procedure and Evidence, PCNICC/2000/INF/3/Add.1, (hereinafter “Rules of Procedure“) Rule 94.

46 Rules of Procedure, Rule 95.

47 Rules of Procedure, Rule 97.

48 US, 1789 Alien Tort Claims Act; 1991 Torture Victim Protection Act.

49 Proceedings brought under this act include the 1980 landmark case of Filartiga v. Peña-lrala (630 F.2d 876 (2d Cir. 1980)) in which the family of a Paraguayan national who had been tortured to death brought a successful civil action against the alleged perpetrator while he was physically present in the US.

50 Kadic v. Karadzic, 70 F.3d 232 (1995), International Legal Materials, Vol. 34,1995, p. 1592.

51 Kadic v. Karadzic, 70 F.3d 232, at 240 (2nd Cir. 1995), International Legal Materials, Vol. 34, 1995, pp. 1602–1606.

52 There have also been cases in the US in which victims have attempted to obtain compensation from the perpetrators of violations of international humanitarian law on other legal bases, but these were thwarted by findings by the courts that the rules of international law which had been violated were not self-executing. See, for example, the Handel et al. v. Artukovic case, where the US District Court for the Central District of California held that it lacked subject-matter jurisdiction under Section 1331 of 28 U.S.C, to consider violations of the 1907 Hague Regulations and the 1929 Prisoner of War Convention, as these treaties were not self-executing. The court also held that customary international law did not grant individuals a right to bring proceedings before national courts. (Handel v. Artukovic, US District Court, Central District, California, 601 F Supp. 1421 (1985)).

53 This issue was specifically addressed by the US District Court for the Central District of California in the Handel v. Artukovic case in its reasoning as to why it did not consider the 1907 Hague Convention and the 1929 Prisoner of War Convention to be self-executing. According to the court, recognition of a private remedy under these instruments would create insurmountable problems for the legal system that attempted to use it as a source of rights enforceable by individual litigants in domestic courts and would pose serious problems of fairness in enforcement. It held that

“[t]he code of behaviour the Conventions set out could create perhaps hundreds of thousands or millions of lawsuits by many individuals, including prisoners of war, who may think their rights under the Hague Convention violated in the course of any large-scale war. Those lawsuits might be far beyond the capacity of any legal system to resolve at all, much less accurately and fairly…”

District Court, Central District, California, Handel v. Artukovic, Judgement of 31 January 1985, Case No. 84–1411, International Law Reports, Vol. 79, 1989, p. 397.

54 In July 1999, Barclays Bank, having been sued before a US District Court along with various other banks with branches, operations or predecessors in France during the Second World War by families of Jewish customers in France who had lost their assets during the Nazi occupation, agreed to the “Barclays French Bank Settlement” which provided for the establishment of a US$3,612,500 fund to compensate the victims. (District Court, Eastern District, New York, Barclays French Bank Settlement case. Settlement Agreement, 8 July 1999).

In 2000, J. P. Morgan agreed to settle compensation claims by the establishment of a settlement fund of US$ 2,750,000 to compensate Jewish victims of the Holocaust whose bank accounts had been seized in France during the Second World War (District Court, Eastern District, New York, J. P. Morgan French Bank Settlement case, Settlement Agreement, 29 September 2000).

While the previous settlements related to unlawful and discriminatory seizures of private property during the conflict, the settlement in the Holocaust Victims Assets case in 2000 concerned the “dormant” bank accounts of persons who had become the victims of violations of international humanitarian law and genocide. There was no allegation that the banks had committed a violation of international humanitarian law; instead it was a question of “re-establishment” of title to the accounts. In this case a US District Court approved a class-action Settlement Agreement between Holocaust victims and Swiss banks. The Agreement set up a US$1.25 billion fund for victims and released, subject to a few exceptions, the Swiss Confederation, the Swiss National Bank, all other Swiss banks, and “other members of Swiss industry” from any further claims. (District Court, Eastern District, New York, Holocaust Victims Assets case. Memorandum and Order, 26 July 2000; Final Order and Judgement approving the Settlement Agreement, 9 August 2000.)

55 See, for example, Israel's 1961 Property Tax and Compensation Fund Law. This establishes a programme and fund for payment of real and personal property damage to persons and property in Israel arising from inter alia war damage, which it defines as “damage caused (…) asa result of warlike operations by the regular armies of the enemy or as a result of other hostile acts against Israel or as a result of warlike operations by the Israel Defence Forces”. The system is funded by annual property taxes levied on real property owners.