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ABSTRACT
The topic of the Jewish property seized or plundered during the Holocaust resurfaced in the 1990s, becoming one of the most active fields of research in Holocaust Studies. This article attempts to retrace the suggestions made by the World Jewish Congress, starting in 1944, about how to address the problem of restitution and compensation. How did these proposals contend with the persistence of a traditional juridical framework, especially within each system of municipal law? Did international law provide adequate tools for managing such an unprecedented scenario? Was the pressure applied by Jewish organizations successful? This article presents some of the issues that most commonly arose in various Western European countries in regard to Jewish restitution (the problem of heirless property or of ‘enemy alien’ assets held by a number of national Custodians), shedding light on how conflicts between the criteria of nationality and the yardstick of race often constituted a major obstacle to righting the wrongs Jews had suffered.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. Motherwell, The Peace We Are Fighting For, 33.
2. There is an extensive literature on the subject. General or comparative studies of note include Bazyler and Alford, eds, Holocaust Restitution; Diner and Wunberg, Restitution and Memory; Dean, Robbery and Restitution; and Beker, The Plunder of Jewish Property.
3. One exception is Caestecker, “The Reintegration of Jewish Survivors into Belgian Society,” 72–108.
4. ‘Property rights’ is used here in a broad sense, also taking into account monetary forms of compensation and indemnification that were granted when the material property itself could not be returned, as was commonly the case after the Holocaust.
5. By contrast, one can clearly see the evolution of international criminal law in response to the problem of defining and punishing the crime of genocide, and the important contribution made to this effort by Jewish law scholars; see Bazyler, Holocaust, Genocide and the Law; Cohen, Dr. Jacob Robinson, the Institute of Jewish Affairs; and Loeffler and Paz, eds., The Law of Strangers.
6. The bilateral agreements signed by the Federal Republic of Germany with 12 Western European countries between 1959 and 1964 seemed to have closed the debate on what indemnification Germany owed to the victims of Nazism. These bilateral agreements related only to compensation for persecution, and not to property issues. Moreover, in 1964 and 1965 the Bundestag voted on the final amendments to the two main laws – the Federal Indemnification Law (BEG) and the Federal Restitution Law (BrüG), respectively passed in 1953 and 1957 – with which the West German government meant to compensate Jewish victims. See Goschler, “Jewish Property and the Politics of Restitution in Germany,” 125.
7. Hoffmann, Human Rights and History, 300.
8. Among the many studies of restitution in Germany one should note Goschler and Lillteicher, eds, ‘Arisierung’ und Restitution. Until the Federal Restitution Law (BrüG) of 1957, even in the Federal Republic territoriality and citizenship were determining factors for establishing who had right to restitutions and who did not.
9. This aspect is underscored by Lillteicher, “West Germany and the Restitution of Jewish Property,” 108. In Italy, the Allies were responsible for including terms in the September 1943 armistice that called for the abolishment of the Fascist antisemitic laws, but they did not intervene in the later restitution policies adopted towards Jewish survivors by the first democratic administrations. See Pavan, Beyond the Things Themselves, 186–8.
10. Colonomos and Armstrong, “German Reparations to the Jews after World War II,” 391.
11. Regarding the Federal Republic of Germany as an exception rather than a paradigm for post-war compensation policies, see Ludi, Reparations for Nazi Victims in Postwar Europe, 8. France in many ways was also a case unto itself. In the ordinances on property restitution issued by the new French government starting in the autumn of 1944, nationality was not a discriminating factor; the beneficiaries of these measures were generally described using the phrase ‘toutes les personnes’. On the ‘special case of France’ see Andreiu, Two Approaches to Compensation in France, 140–6; and Fogg, Stealing Home, 57–108.
12. Regarding the WJC see Rosensaft, The World Jewish Congress; Segev, The World Jewish Congress during the Holocaust. Neither book devotes any attention to the WJC’s work in relation to Jewish property rights, however. Regarding other fields in which the WJC made extensive efforts just after the war, see Lewis, “The World Jewish Congress and the Institute of Jewish Affairs at Nuremberg,” 181−210; Marrus, “A Jewish Lobby in Nuremberg,” 1651–66. On the WJC’s role in the restitution campaign of the 1990s, see Marrus, Some Measure of Justice.
13. The first government in exile to make a declaration about this was Poland’s, in a decree of November 30, 1939; it was followed by the governments of Belgium, the Netherlands, Norway, Greece, Yugoslavia and France. See Robinson, Indemnification and Reparations, 118–32.
14. Kurtz, “The Allied Struggle Over Cultural Restitution,” 178.
15. “Note on the Meaning, Scope and Application of the Allied Declaration against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control.”
16. Robinson, “Reparation and Restitution in International Law,” 195.
17. Central Zionist Archive (hereafter CZA), WJC-London, C2, f. 1896, Survey of the problem of restitution, June 22, 1944.
18. Regarding the Institute see Cohen, Dr. Jacob Robinson, the Institute of Jewish Affairs, 81–100; and Segev, The World Jewish Congress during the Holocaust, 184–201.
19. Born in 1898 in Vištytis, Lithuania, as Nehemia Robinzonas, he studied law at the University of Jena, and began practising law in Kaunas with his brother Jacob in 1927. He fled with his family to the United States at the end of 1940, later becoming a US citizen. In the 1952 negotiations of the Conference on Jewish Material Claims Against Germany with German authorities at The Hague, Robinson acted as chief adviser in formulating the agreement on indemnification, and later contributed to its legislative and judicial implementation. He died in 1964.
20. On Jacob Robinson, a leading figure in the post-war human rights debate, see Loeffler, Rooted Cosmopolitism.
21. Robinson, “Reparation and Restitution,” 107.
22. See especially articles 46, 47 and 56 of the 1907 Hague Convention. The only possible foothold in international law was offered by article 297 (paragraph f) of the Treaty of Versailles.
23. This was true for Germany, Austria, Czechoslovakia, Italy, Romania and Hungary.
24. Robinson, “Reparation and Restitution,” 101.
25. Ibid., 106.
26. CZA, WJC–London, C2, f. 1896, report dated September 7, 1944, 3.
27. Ibid., 4.
28. The term ‘reparations’ is usually taken to mean lump sums payable to groups or individuals, while ‘restorations’ are individual reinstatements or indemnifications. ‘Restoration’ may be either in natura (restitution) or take the form of money (compensation and indemnification). On reparation policies at the end of the Second World War see Ludi, Reparations for Nazi Victims.
29. Robinson, “Reparations and Restitution,” 187.
30. For instance, in art. 74 of the February 1947 peace treaty with Italy: ‘Italy accepts the principles of the United Nations Declaration of 5 January 1943 and shall return, in the shortest possible time, property removed from the territory of any of the United Nations. The obligation to make restitution applies to all identifiable property at present in Italy which was removed by force or duress by any of the Axis Powers from the territory of any of the United Nations, irrespective of any subsequent transactions by which the present holder of any such property has secured possession.’
31. The only exceptions, which were soon undone by the two countries’ absorption into the Soviet Bloc, were the treaties with Hungary and Romania (in articles 29 and 27, respectively), which introduced what was called ‘the Jewish article’. See Robinson, “Reparations and Restitution,” 201.
32. Ibid., 203.
33. Caestecker, “The Reintegration of Jewish Survivors,” 77.
34. CZA, WJC–London, C2, f. 2024.
35. CZA, WJC–London, C2, f. 560, April 13, 1954.
36. This principle was also confirmed, for German Jews, by article 116 (paragraph 2) of FDR’s Basic Law in 1949. Only in 1952 did Belgium conform to the international standard and declare all German and Austrian Jews to be stateless.
37. Caestacker, “The Reintegration of Jewish Survivors,” 84.
38. CZA, WJC–London, C2, f. 561, April 13, 1954. The same principle, in a broader form, was at work in the war damages law passed in France in October 1946 (Loi 46–2389) that also allowed foreigners to obtain compensation (art. 10). The Italian law, passed in 1953, instead completely excluded foreigners from receiving such compensation.
39. CZA, WJC–London, C2, f. 560, March 26, 1954. See van Doorslaer, “The Expropriation of Jewish Property,” 164.
40. See note 35.
41. See Aalders, A Disgrace? Postwar Restitution of Jewish Looted Property in the Netherlands.
42. Unless otherwise indicated, references to the legislation issued by many European countries regarding the restitution of assets stolen by the Nazis are drawn from a book published in 1946 by the Weiner Library in London, Restitution: European Legislation to Redress the Consequences of Nazi Rule.
43. Moreover, once this decree entered into force, women classified as enemy aliens who married Netherlanders after the war ceased to automatically obtain Dutch citizenship and all the rights that went with it.
44. Decree of 16 November 1945, concerning Enemy Property.
45. Israeli citizenship was automatically granted to every Jew living in Israeli territory when the law entered into force, unless an official request to the contrary was presented before that date. See Rürup, “The Citizen and Its Other.” Nor was this the first time something like this had happened; the Israeli law echoed the Brazilian constitution of 1891 (art. 69).
46. Even more paradoxically, the revocation of Jewish pensions referred to a Fascist law of 1933 that the regime had passed to financially attack political exiles who had taken the citizenship of their host country.
47. In this regard, see the documentation at the Central Archive for the History of Jewish People, Jerusalem (hereafter CAHIP), P 192, box 66 and box 67.
48. Here is the passage in question from article 77, paragraph 4: ‘Under the peace treaty, Italy retained the right to recover assets transferred to Germany after 3 September 1943 only with regard to artistic and cultural heritage, gold from the Bank of Italy, and industrial property taken by the Nazi occupiers.’
49. Pavan, Beyond the Things Themselves, 230.
50. In Britain and the United States, these institutions were respectively set up in 1914 and 1917, as part of the so-called Trading with the Enemy Acts.
51. “Loi relative au sequester des Biens, Droits et Intérêts Ennemis,” August 23, 1944, no. 21, in Restitution: European Legislation to Redress the Consequences of Nazi Rule.
52. See Levin, His Majesty’s Enemies; and Ward and Locke, ‘Ex-Enemy’ Jews.
53. CZA, WJC-London, C2, f. May 5, 1831, 1947.
54. The passage quoted here is from article 76 of the peace treaty with Italy, but identical phrasing was used in the treaties with Romania and Hungary (respectively in articles 27 and 29).
55. CZA, WJC-London, f. May 5, 1831, 1947.
56. The Federal Indemnification Law (BrüG) of 1957 allowed even Jews without German citizenship to request compensation for property stolen from them in territories occupied by the Nazis (though only if that property was then transported into the Reich), but excluded all Jews residing in nations that did not have diplomatic relations with the Federal Republic of Germany, which basically meant the entire Soviet bloc. See Lillteicher, “West Germany and the Restitution of Jewish Property,” 105.
57. CZA, WJC-London, C2, f. 979, September 10, 1950.
58. CAHIP, Jewish Restitution Successor Organization (hereafter JRSO)-New York, 916a, news item reported by the Jewish Telegraphic Agency, April 1, 1954, ‘British Parliament Hears Plea on Property Belonging to Nazi Victims.’
59. CZA, WJC-London, C2, f. 830.
60. The Nazi Victims Relief Trust was established in August 1957 and dissolved in July 1960.
61. See Levin, His Majesty’s Enemies, 155.
62. CZA, WJC C2 London, f. 2024.
63. Robinson, “Reparation and Restitution,” 203.
64. Peace Treaty with Roumania, Art. 27 (2).
65. Robinson, “Reparation and Restitution,” 137. Among the obstacles thwarting the measures that turned heirless property over to Jewish organizations, one should note the lengthy procedures required to certify the owners’ presumed death, which were often incompatible with the irrationally short statutes of limitation set by the laws.
66. OPAIE was an independent arm of the Central Board of Jewish Communities in Greece.
67. The Council for the Restoration of Rights (Raad voor het Rechtsherstel) was a government agency created to manage this kind of property.
68. Staatsblad van het Koninkrijk der Nederlanden, known as E100, articles 110 and 113, in Restitution: European Legislation.
69. CZA, WJC-London, C2, f. 453, May 19, 1950. The WJC report declared that ‘since May 1945 about 75% of these securities have been restored to the rightful claimants. Therefore 25% have not been claimed and are apparently left without legal successors.’ In the Netherlands, legal succession was recognized up to six degrees of relationship, and under Dutch law, heirless property had to remain under state administration for a period of 30 years before escheatment would come into effect.
70. CZA, WJC-London, C2, f. 1631. The Belgian Jewish community, which numbered about 65,000–70,000 people before the war, had about 25,000 members in 1950.
71. CZA, WJC-London, C2, f. 1631.
72. CZA, WJC-London, f. 561 o 562, letter of August 11, 1951 from the Belgian minister of foreign affairs to F. R. Bienefeld, WJC representative and head of the WJC Legal Section in London.
73. CZA, WJC-London, C2, f. 561 April 16, 1958.
74. In Trieste, which was a free territory at that time, Order no. 133 was issued on January 27, 1948, by the American occupying authority, transferring all heirless Jewish property to the local Jewish community.
75. CZA, WJC-London, f. 477, March 16, 1954, Raffaele Cantoni to Nehemia Robinson.
76. Pavan, Beyond the Things Themselves, 312.
77. It was only in 1947 that the Dodecanese were handed over to Greece. Before then, the Jews of Rhodes were considered Italian citizens, and the 1946 Greek law on heirless property did not apply to them.
78. CAHJP, JRSO-New York, f. 938, April 11, 1956.
79. The value of the property administrated by OPAIE and the total amount of funds distributed since 1946 are still unknown. See Plaut, Greek Jewry, 85–8.
80. Droumpouki, “German Federal Compensation and Restitution Laws and the Greek Jews,” 174. Droumpouki (p. 175) also points out that the Greek government hindered payment of the compensation due to Greek Jews under the German Federal Restitution Law (BrüG) of 1957. When the latter resided in Israel, or were no longer Greek citizens, the government presented various obstacles to the transfer of these sums.
81. CAHJP, JRSO-New York, 916b, note signed by S. Kagan, November 23, 1954. The Yugoslavian Jewish community, 70,000 people before the war, numbered between 8000 and 10,000 in 1945.
82. CAHJP, JRSO-New York, 916b, report titled “The Heirless Property Paradox,” May 25, 1953.
83. Letter from A. Hyman to the New York Times, published on June 19, 1953.
84. Founded in New York in 1947 by various American and international Jewish organizations, its goal was to institute proceedings in the American Occupation zone in Germany for the restitution of individual and communal heirless Jewish property. Regarding the JRSO, see Ayaka, “The ‘Gemeinde Problem’”; and Lustig, “Who Are to Be the Successors of European Jewry?”
85. Public Law 826, August 23, 1954, amending section 32 of the Trading with the Enemy Act.
86. CAHJP, JRSO-New York, 939. The value of such property was estimated to be about US$1.8 million. The documentation in the archives does not shed detailed light on the nature of the assets held up at the Alien Property Custodian, but one can assume they included both bank accounts and immovable property.
87. “America Pays for Heirless Assets,” Jewish Chronicle, July 19, 1963, 20.
88. The JRSO became the recipient of the sum resulting from the US government’s investigation into the heirless Jewish property held by the Office of Alien Property Custodian.
89. Sir Richard Stafford Cripps, a Labour MP, served in the Attlee ministry as president of the Board of Trade and then, from 1947 to 1950, as Chancellor of the Exchequer.
90. CAHJP, JRSO-New York, 916b, October 8, 1954.
91. Even as regards Germany, some have pointed out that the Bürgerliche Gesetzbuch (civil code) proved ill suited to the unprecedented challenges, legislative and otherwise, of dealing with the consequences of the Holocaust; see Lillteicher, West Germany and the Restitution of Jewish Property in Europe, 108.
92. Robinson, Indemnification and Reparations, 116.
93. The Holocaust (Shoah) Immovable Property Restitution Study: Executive Summary (January 2017), 16. The text can be viewed at https://archive.jpr.org.uk/object-eur160. The Holocaust (Shoah) Immovable Property Restitution Study covers the legislation passed by all 47 states that participated in the 2009 Prague Holocaust Era Assets Conference and endorsed the 2009 Terezin Declaration that came out of the Prague conference. The Terezin Declaration focuses in substantial part on the treatment of immovable (real) property restitution: private, communal and heirless property. It was sponsored by the European Shoah Legacy Institute as part of its Terezin Declaration monitoring mandate. The results of this study have now been published in Bazyler, et al., Searching for Justice after the Holocaust.
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Ilaria Pavan
Ilaria Pavan is Associate Professor in Contemporary History at the Scuola Normale Superiore of Pisa. Her main fields of research are the history of Fascism and antisemitism, and the history of the Jews in Italy from the Emancipation Era to post-fascist times. She has been a visiting scholar at the Institute of European Studies-University of California, Berkeley, at the Graduate Center of the City University of New York, at the University of Wisconsin at Madison, at the Italian Academy for Advanced Studies at Columbia University, New York and a fellow at the Yad Vashem International Institute for Holocaust Research in Jerusalem. Amongst her publications are: Beyond the Things Themselves: Economic Aspects of the Italian Race Laws (1938–2018) (Yad Vashem International Institute for Holocaust Research, Jerusalem 2019); “Not Facing the Past: Restitutions and Reparations in Italy (1944–2017)”, ‘Yod: Revue des études hébraïques et juives modernes et contemporaines 21 (2018); and “A Betrayed Community: the Italian Jewish Community Facing Persecution”, Holocaust Studies, 15 (2009).