Оne of the forms to repair damage from internationally wrongful acts is restitution, that is bringing seized property back to its owners. This form of damage reparation was used after WWII. Thus, the Paris Peace Treaty obligated the Italian government with giving back property previously seized from victorious countries or reimburse the losses. Similar clauses were included in the 1947 Treaties with Bulgaria, Hungary and Romania 1. The 1955 Treaty for the Re-Establishment of Free and Independent Austria contained an obligation taken upon by the country’s authorities, to return the assets seized after March 13, 1938 or reimburse it 2. After several years, in 1957, West German authorities adopted the special law on restitution, providing for the return of private assets seized by Nazis. Thus, restitution and compensation were carried out by the former Axis countries.
However, starting from the 1990s, one can see a deep transformation of approaches taking place, regarding the restitution of Nazi-confiscated assets that used to belong to Holocaust victims. In 1998, Washington hosted an international conference on Holocaust-era assets that resulted in the so-called Washington principles signed by 44 states who undertook to return unlawfully seized cultural treasures to Holocaust victims who used to own them before, even on the expiration of the formal limitation period. About a decade later, on June 20, 2009, forty-six nations, among them almost all Central and East European countries, signed the Terezin declaration that developed the “Washington principles”.
The Terezin declaration called for joint effort to guarantee ‘either in rem restitution or compensation’ of the former Jewish communal assets, religious objects, Holocaust and other Nazi victims’ private property. The governments of the member states were recommended to consider “implementing national programs to address immovable (real) property confiscated by Nazis, Fascists and their collaborators.”
Since neither the Washington principles, nor the Terezin declaration were internationally legally binding, a number of East European member states were reluctant at returning Nazi crime victims property.
The fact that the member states failed to fulfill the Terezin declaration was so embarrassing that on May 9, 2018 President Trump signed an act named JUST (Justice for Uncompensated Survivors Today), under which Department of State was obliged to prepare a report on former Jewish property in the member states. Under that law, US Department of State shall urge member states to return the property to rightful owners or Jewish organizations. Where the property cannot be returned, the state shall take care ‘of comparable substitute property or the payment of equitable compensation to the rightful owner in accordance with principles of justice and through an expeditious claims-driven administrative process that is just, transparent, and fair’.
Compelling the Terezin declaration member states to follow their obligations of paying compensations to Nazi crime victims is what JUST unequivocally is all about. The United States actually guarantee that the Terezin declaration will be fulfilled. Although the law does not specify the procedure of forcing sovereign countries to fulfill the declaration, Washington possesses all tools necessary for that purpose.
What American actions under this law may look like, one can see from what happened to France not long ago, that was urged to pay compensations to Holocaust victims who had been deported from France to Nazi camps.
In 2001, several Holocaust victims’ descendants filed a lawsuit in a French court against the government of France and the SNCF, the state-run railroad company. The plaintiffs demanded a financial compensation for the transfer of their families to Nazi concentration camps carried out by the SNCF (a total of about 76,000 Jews were deported from France to Nazi camps during the war). The court dismissed the case several times based on the assertion that the SNCF had been controlled by Nazi occupational authorities during the war. Besides, they said the postwar France cannot be responsible for what collaborators from the Vichy government had done.
However, archive studies have shown that the SNCF used to issue bills to the French government for the transfer of Jews, meaning it made profit. In 2006, the District Court of Toulouse came to the conclusion that the French government and the SNCF were partners in the crime against humanity, charging them with a €60,000 compensation in favor of the plaintiff: two thirds of the sum from the state and one third of it from the SNCF.
Despite the fact that France’s highest administrative court withdrew the decision made by the district court due to technical discrepancies, this decision gave a start to a whole series of new lawsuits from Holocaust victims’ relatives against the French government and the SNCF, which were considered, first of all, by American courts. The plaintiffs also filed a complaint to U.S. Congress, adding political dimension to the problem.
By that time, SNCF has started to conquer the American rail construction market. In an effort to avoid legal action and get profitable contracts, France signed a $60m agreement with the United States regarding compensations for Holocaust victims and their families deported from France during WWII and now living in the U.S. in December 2014 3. That combination of legal claims, political pressure and economic pressure on the part of the U.S. really worked.
This successful example of how the US solved the issue of the French payments to some Holocaust victims shows that the enforcement of the Terezin Declaration among its member states, as envisaged by JUST, has a lot of potential. In its turn, this means that the Declaration should be understood not only as simply a declarative act, but also as a potential source of international law ready for application, that can change the existing way of repairing damage in favor of Nazi crime victims.
The Terezin Declaration is a clear evidence of the transformation we witness today, regarding the notion of international legal responsibility for crimes against humanity committed by Nazis and their accomplices during WWII. Earlier, the restitution of Nazi victims’ property was carried out only by the Axis countries. Today, countries not directly responsible for the Nazi wrongful acts, but getting material profit from those acts, thus being continuators of the wrongful acts as far as the Holocaust and other Nazi crimes are concerned, can also bear responsibility.
For the vast majority of Central European and East European countries, the adoption of the Terezin Declaration in 2009 was not the first step in the process of returning the property that used to belong to the victims of the Holocaust and other kinds of Nazi persecution to rightful owners and their legal successors 4.
For example, the Hungarian government linked Holocaust victims’ property restitution process to its obligations as a surrendered Axis member under the Paris Peace Treaty of 1947. Therefore it already started to settle the issue of restitution in the early 1990s. These steps taken by the Hungarian government led to signing an agreement with local Jewish communities in 1997 that allowed them to receive annual indemnification payments.
In 2001, the Slovakian authorities created a special fund to pay compensation to Holocaust victims and their heirs. Besides, the owners and their legal successors received back more that 300 non-movable assets. Czech Republic demonstrated a similar approach, establishing the Endowment Fund for the Victims of the Holocaust and returning over 100 communal Jewish property items. The same year, the Austrian authorities signed an agreement with Jewish organizations on property restitution and social payments for Holocaust victims living abroad. The total amount of the agreement made $480m, where $210m were compensations for property losses.
The Baltic nations had quite a different story. In Estonia, the Jewish community was relatively small before the war, so the Jewish property restitution issue was settled relatively quickly. In Latvia and Lithuania, however, efforts to return Jewish property met with wide opposition from the local political elites.
As early as 2006, the Latvian government prepared a draft Latvian Jewish Community Support Law that provided for a €45m compensation to the Council of Jewish Communities of Latvia, as well as the restitution of 14 of 270 non-movable items that used to belong to Jewish civic and religious organizations. However, this lawmaking effort was blocked by rightwing parties in the Saeima. Only the so-called ‘Russian’ parties comprising the political opposition (For Human Rights in a United Latvia and the Consent Center) supported the law. The attempt to settle the Jewish property restitution issue was put to rest for long; signing the Terezin Declaration did little to change the situation.
In 2012, Latvian PM Valdis Dombrovskis, in an answer to the call from the Latvian Council of Jewish Communities, demanded that Minister of Justice Gaidis Bērziņš set a workgroup to make in inventory of property items that used to belong to Jewish religious and civic organizations before June 17, 1940. However, the minister refused to follow the order and resigned in an act of protest. The idea of creating a workgroup that was to identify Jewish property entitled for restitution was put aside.
In September 2015, after three weeks of Latvian presidency in the EU Council and one day before Foreign Minister Edgars Rinkēvičs was in Washington on a formal visit, a law was proposed in the Latvian Saeima regarding the return of a number on prewar non-movable property items, that used to belong to Jewish organizations of Latvia, to their legal successors. This law took account of only 5 of 270 real estate items seized from Jewish organizations in the past. The ruling coalition had no problems adopting the law in the Saeima, since it was clear even for the rightwing nationalists that the law was only a PR stunt meant to strengthen the Latvian positions on the international stage, rather than part of an orderly restitution process.
Today’s Latvia belongs to a small minority of countries that did almost nothing with regard to Holocaust victim’s property restitution. The situation cannot be changed through either American diplomatic effort of European Parliament resolutions. Latvian ethnocratic elites keep holding their stand, rejecting all the efforts of orderly restitution of communal and private property of Holocaust victims.
Lithuania may serve as a little more positive example, as compared to Latvia. With rightwing elite opposition to Holocaust victims property restitution being as strong as in Latvia, the Lithuanian parliament still managed to adopt a law on goodwill compensation for pre-Holocaust Jewish real estate in June 2011, under which Lt128m (approx. $53m) compensations were to be paid from 2013 till 2023 for the lost communal property. Despite the fact that the document contained a clear reference to the Terezin Declaration of 2009, the adjective “goodwill” in its title revealed Lithuania’s unwillingness to acknowledge its legal liability for the unlawful possession of Holocaust victims’ property. This, paying compensations was described as an act of Lithuania’s “goodwill” rather than an attempt to restore justice.
Lithuania’s “goodwill”, however, did not include the restitution of Holocaust victims’ private property. Under Lithuanian legislation, only persons who are now citizens of the country had the right for such restitution. Those Holocaust survivors who left Lithuania after WWII, as well as heirs to the Jews massacred by Nazis and their accomplices were deprived the right to claim back their lost property. This situation still lingers on, despite vocal criticism from US State Department.
The reasons why such situation with private Holocaust victims property restitution became possible in Lithuania is not only government’s unwillingness to pay compensations from the state budget. Another reason is that not only Nazi occupation forces but also collaborationist formations in control of the so-called ‘’interim government of Lithuania’ were responsible for Jewish property seizure during the summer and autumn of 1941. It was as early as 1941 that the Lithuanian administration of Kaunas issued an order on the resettlement of Jews to a ghetto and the requisition of their real estate in favor of the city autonomy. After a couple of weeks, instructions on the Jewish status approved by the ‘interim government’ underpinned such practice as legally appropriate. Also, regional Lithuanian authorities practiced seizures of Jewish property a lot. “The Lekeciai district is now absolutely Jews-free,” head of the district police reported to the Kaunas police department. “No jewelry or money to be found by them. The rest of movable and non-movable assets were accepted and stored by the Lekeciai autonomy.” 5
If the mass restitution of Holocaust victims’ property really took place it would reveal a lot of stories like this one. The ‘interim Lithuanian government’, and the structures in its charge, were directly responsible for both the seizure of property and the persecution and killing of Jews. Since modern Lithuanian authorities portray the members of the ‘interim government’ as national heroes acting for the benefit of their country, this means that the wrongful acts committed by those ‘national heroes’ can be attributed to Lithuania as a state.
ReFERENCES:
- Андрианов В. Проблема реституции в международном праве и практике Конституционного Суда Российской Федерации // Конституционное право: Восточноевропейское обозрение. 1999. № 4. С. 249 – 253.
- Гийар Э.-К. Возмещение ущерба в случае нарушения международного гуманитарного права // Международный журнал Красного Креста. 2003. № 849-852. С. 270.
- Bazyler M. Holocaust, Genocide, and the Law. A Quest for Justice in a Post-Holocaust World. Oxford, 2016. P. 167-168.
- Подробные данные о ситуации с реституцией имущества жертв Холокоста в странах ЦВЕ представлены на сайте Всемирной еврейской организации по реституции (World Jewish Restitution Organization).
- Dieckmann С., Sužiedėlis S. Lietuvos žydų persekiojimas ir masinės žudynės 1941 m. vasarą ir rudenį = The Persecution and Mass Murder of Lithuanian Jews during Summer and Fall of 1941. Vilnius, 2006. P. 258.
