by Rhodri C. Williams
A short note to announce an interesting development related to Holocaust restitution. Although the opening of archives and the softening of unenlightened political positions after the Cold War contributed to a surge in efforts to provide reparations to Holocaust survivors, former forced laborers and other victims of the Nazis, these have tended to comprise cash compensation, symbolic acts such as apologies and various forms of rehabilitation. Actual restitution of confiscated real estate has lagged behind, dogged by the usual problems facing inter-generational restitution (loss of witnesses and documentation, competing claims from bona fide subsequent purchasers, etc.) along with grim particularity that so many of the beneficiaries were murdered along with all potential heirs.
However, a little known achievement of the rather stormy Czech EU presidency last year was the convening of a ‘Holocaust Era Assets Conference‘ in Prague in order to “support Holocaust remembrance and education in national, as well as international, frameworks and to fight against all forms of intolerance and hatred.” While the work of the conference focused on a variety of topics from restoring looted art works to education and research, one of the goals set for the participants related more directly to lost property:
To review current practices regarding provenance research and restitution and, where needed, define new effective instruments to improve these efforts.
There is a slight irony in the fact that this effort was to be undertaken in the context of an EU Presidency otherwise dominated by the exertions of Czech President Vaclav Klaus to secure an exception to the new Charter of Fundamental Rights set out in the Lisbon Treaty that would preclude property claims by the 2.5 million Sudeten Germans forcibly expelled at the end of World War II. Nevertheless, the “Prague Conference” went forward, producing the Terezin Declaration of June 30, 2009, which announced a program of activities meant to ensure assistance, redress and remembrance for Holocaust victims. These are broken down into a number of categories, comprising the current welfare of survivors, protection of Jewish burial sites, looted art and cultural property, access to historical archives, remembrance, and “immovable (real) property”:
Noting the importance of restituting communal and individual immovable property that belonged to the victims of the Holocaust (Shoah) and other victims of Nazi persecution, the Participating States urge that every effort be made to rectify the consequences of wrongful property seizures, such as confiscations, forced sales and sales under duress of property, which were part of the persecution of these innocent people and groups, the vast majority of whom died heirless.
The specific commitments made related to real property are interesting and worth quoting in full.
Noting that the protection of property rights is an essential component of a democratic society and the rule of law,
Acknowledging the immeasurable damage sustained by individuals and Jewish communities as a result of wrongful property seizures during the Holocaust (Shoah),
Recognizing the importance of restituting or compensating Holocaust-related confiscations made during the Holocaust era between 1933-45 and as its immediate consequence,
Noting the importance of recovering communal and religious immovable property in reviving and enhancing Jewish life, ensuring its future, assisting the welfare needs of Holocaust (Shoah) survivors, and fostering the preservation of Jewish cultural heritage,
1. We urge, where it has not yet been effectively achieved, to make every effort to provide for the restitution of former Jewish communal and religious property by either in rem restitution or compensation, as may be appropriate; and
2. We consider it important, where it has not yet been effectively achieved, to address the private property claims of Holocaust (Shoah) victims concerning immovable (real) property of former owners, heirs or successors, by either in rem restitution or compensation, as may be appropriate, in a fair, comprehensive and nondiscriminatory manner consistent with relevant national law and regulations, as well as international agreements. The process of such restitution or compensation should be expeditious, simple, accessible, transparent, and neither burdensome nor costly to the individual claimant; and we note other positive legislation in this area.
3. We note that in some states heirless property could serve as a basis for addressing the material necessities of needy Holocaust (Shoah) survivors and to ensure ongoing education about the Holocaust (Shoah), its causes and consequences.
4. We recommend, where it has not been done, that states participating in the Prague Conference consider implementing national programs to address immovable (real) property confiscated by Nazis, Fascists and their collaborators. If and when established by the Czech Government, the European Shoah Legacy Institute in Terezin shall facilitate an intergovernmental effort to develop non-binding guidelines and best practices for restitution and compensation of wrongfully seized immovable property to be issued by the one-year anniversary of the Prague Conference, and no later than June 30, 2010, with due regard for relevant national laws and regulations as well as international agreements, and noting other positive legislation in this area.
A number of these commitments, such as the setting up of the “Terezin Institute” and the development of restitution guidelines within a year, were somewhat ambitious. However, according to a recent Radio Prague interview with the Special Advisor to the US Secretary of State for Holocaust-era assets, Stuart Eizenstat, they are well on the way to being met. According to Eizenstat, the Institute is now up and running and a draft set of restitution guidelines had been negotiated by the forty-seven Terezin Declaration signatory countries and may be promulgated as soon as June 9. The recommendations in the guidelines are likely to be quite responsive to the exigencies of inter-generational restitution. According to Eizenstat:
Everyone knows that when it’s impossible to get the total fair market value of property back – we are talking about fractions of that. It’s in some respect symbolic. In some cases, for example, if this former property is in state hands, in the hands of the government, it can be restituted in kind. If it’s in private hands, flexible compensation programmes, swaps of equivalent property can be done.
A good start, but coming a full sixty-five years after the end of World War II, a late one.