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Diplomacy in Action

Remarks to the Board Meeting of the Conference on Jewish Material Claims Against Germany


Remarks
Douglas Davidson
Special Envoy for Holocaust Issues, Bureau of European and Eurasian Affairs
The Westin Hotel
Washington, DC
July 10, 2012

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As prepared 

Introduction

Thank you very much for inviting me to address you this morning. To begin, let me congratulate you on sixty years of successful work. Since I hear some of what appears to be a constant drumbeat of criticism of the Claims Conference, I know this has not always been easy. But your persistence and perseverance through it all have clearly benefited millions of Holocaust survivors. That is certainly no small achievement.

I have been asked this morning to say a few words about United States government efforts to achieve the return of properties taken from Jewish victims and survivors of the Holocaust—or at least to achieve some measure of compensation for what was lost. Because the field is large, I shall confine myself to just a few countries. If I seem to omit some important ones—Hungary, for instance, and of course Germany—it is mainly because you in this room know much more about what is occurring there when it comes to restitution and compensation than I.

U.S. Ambassadors and Embassies

I also believe it is important to note that in the countries I am about to discuss, the involvement of our American Ambassadors and their embassy staffs has been crucial to any progress that has been made. Many of you are familiar with Ambassador Anne Derse’s successful advocacy of communal property legislation in Lithuania. If you do not know of the similar hard of work of Ambassadors Judith Garber in Latvia, James Foley in Croatia, Mary Warlick in Serbia, Lee Feinstein in Poland, and Marc Gitenstein in Romania, you should. (This list is by no means exhaustive. I could as easily add Norman Eisen in the Czech Republic, Eleni Kounalakis in Hungary, and others from Estonia to Greece.) Since many of these ambassadors will be leaving their posts in the next several months, I do think this group might consider some kind of collective commendation for them. In this administration, too, the Secretary of State has been a staunch and frequent advocate for restitution or compensation—and the President of the United States has raised this issue at key moments as well.

Let me now review some of the more interesting or discouraging things that have occurred since I last addressed this group a year ago. I will conclude with a few brief thoughts on the usefulness—or lack thereof—of certain European institutions to this effort.

Austria

I shall begin with Austria, for we have reached something of an historical landmark. The Claims Committee of the Austrian General Settlement Fund processed its final claim on June 26 of this year. This Committee was established by the Washington Agreement on Holocaust-era Assets signed by the United States and Austria in 2001. It has processed more than 20,000 applications for compensation for Nazi-era property losses and distributed nearly $210 million to Holocaust survivors and their heirs. Interested observers have been tempered in their enthusiasm for the Fund’s work as it has drawn to a close. One described it has having achieved "some success" in compensating Holocaust survivors and their heirs, but then pointed out as well that the $210 million distributed by the Committee was but a fraction of the nearly $1.5 billion in claims it had received. The Chairman of the Claims Committee, Franklin Berman, also acknowledged that the payments could only be seen as a "late gesture of reconciliation." At the same time, however, he noted the Committee had brought "some form of justice" to far more people than could have been achieved through other means. Although procedures are now being put in place to bring the General Settlement Fund to an end, the Austrian National Fund for Victims of National Socialism will continue to support Holocaust research and commemoration projects and will also now administer a fund for the renovation of Jewish cemeteries in Austria.

Croatia

Let us turn next to a land once part of the Austro-Hungarian Empire—Croatia. Although both Croatia’s Supreme Court (in 2010) and its Constitutional Court (in 1999) have ruled that foreigners should have the same rights to restitution as Croatian citizens, there are still no provisions under Croatian law that would enable foreign citizens to pursue claims for property confiscated or nationalized by the Yugoslav Communist following World War II. The new Croatian government reportedly intends to amend existing legislation to put foreigners on an equal footing with Croatian citizens in making restitution claims for property taken by Communist authorities.

The current law begins with nationalizations after 1945. To rectify this, the new Croatian government, which insists that it is not the successor state to the Nazi-puppet regime known as the “Independent State of Croatia” and that it therefore has no legal responsibility for what happened during the period of the Second World War, has proposed the creation of a state-established foundation. This foundation would address and process Holocaust-era property claims, provide social welfare support to victims, and augment education about, and commemoration of, the Holocaust. Croatia cites the “Slovak model” as its guide.

Despite such encouraging statements, however, we have seen few tangible signs of progress. We are also attempting to learn more about the proposed foundation before endorsing this initiative. We do, however, believe the concept has merit if the Coordination of Jewish Communities in Croatia – an umbrella group made up of the country’s ten legacy Jewish communities – plays a leading role with the Government of Croatia in formulating the proposed foundation. We also envision a possible role for the World Jewish Restitution Organization.

Latvia

In Latvia, Jewish communal property restitution has once again become a factor in politics and in the media. In recent meetings with U.S. officials, including Secretary of State Clinton and a delegation led by Congressman Burton, Prime Minister Dombrovskis has reiterated his support for returning property to Jewish religious and communal organizations. This issue recently triggered a governmental crisis that led to the resignation of Justice Minister. Following Justice Minister Berzins’ announced departure from office, the Prime Minister and the political party that prompted the crisis agreed that the Latvian Council of Jewish Communities would continue to meet with all political parties in the Parliament in order to hear their views on, and determine the future development of, restitution as a political issue. The Council then stated that it would look “for a solution to this issue and for clarity only after comprehensive and detailed consultations with all parliamentary factions.” A new Justice Minister, Janis Bordans, from the same political party as the previous minister, has been named and our Embassy will be working closely with him and others, seeking to move towards resolution. Meanwhile, according to a Latvian market research company, 39% of Latvians support returning communal properties to the Jewish Community, 49% oppose, and 12% do not have an opinion on the issue. The government notes that this is an improvement over previous surveys.

Lithuania

On April 4 of this year, the Government of Lithuania appointed the “Good Will Compensation Foundation” to oversee the disbursement of compensation for Jewish communal property confiscated during the Holocaust. In accordance with the Law on Good Will Compensation for Immovable Property of Jewish Religious Communities—which the Lithuanian Parliament, the Seimas, adopted in June of 2011—the Government of Lithuania will transfer 128 million litas, which is just under $50 million, to this foundation over a ten year period for Jewish educational, religious, cultural, scientific, and charitable projects. An additional three million litas (or roughly one million dollars) is to be dispersed immediately to the foundation to support Holocaust survivors, which according to representatives of the Jewish Community of Lithuania number approximately 1,000 people. On June 5 the Lithuanian government disbursed the first installments of the three million litas to the foundation, on schedule.

The Jewish Community of Lithuania, an association which represents the majority of Jews living in Lithuania, supported the legislation and applauded the Lithuanian government’s efforts in assuming Lithuania’s moral responsibility for its difficult and tragic past. The international community and international Jewish organizations also welcomed the Government of Lithuania’s appointment of the foundation as an important step towards historical justice.

Poland

Poland continues to be an object of great interest for many of us assembled here. The news from that country, however, is decidedly mixed.

On the one hand, despite annual rumors that it would cease its work, the Polish Government’s commission for the restitution of Jewish communal property continues to process Jewish community property claims. To date, the Commission has received more than 5504 claims, of which 2213 have been fully or partially settled. The Jewish community has received or will receive 27,104,671 Polish Zlotys (PLN), which is approximately $7,980,000, in financial compensation for seized communal property. In addition, the Jewish community has been granted damages in the amount of PLN 33,540,137.49 about $9,900,000.

On the other hand, Poland still does not have a personal (or private) property restitution law. Municipalities instead handle claims for personal property restitution or compensation through local administrative processes or through the courts. Should a claim be upheld, the local authority that possesses the property must either return the property or pay the full value of the land to the owner. Some claimants have recently even sued successfully for property in Warsaw.

The total value of the property seized in Warsaw is estimated at PLN 40 billion, which is about $12 billion. Under the current system, the city is potentially liable for this entire amount. According to a local newspaper, the city has returned 2500 properties to their owners. The city of Warsaw also reportedly dedicated PLN 250 million ($80 million) of its 2010 budget for cash compensation to owners of properties the city is unwilling or unable to return. A local paper claims, however, that Warsaw would need to set aside PLN 500 million ($160 million) a year for the foreseeable future to pay off successful claimants.

Because of the cost to Warsaw and because, unlike the rest of the country, Warsaw’s property was nationalized under a single law, the members of the ruling party, Civic Platform, who represent Warsaw are considering a bill to provide for partial compensation for property nationalized in Warsaw only. This bill has not yet, however, been introduced into the legislature.

Other cities and local authorities in Poland are in the same situation as Warsaw—that is, they are liable for 100% of any successful property claim under the current court-based system. It is thus possible that they too might push for their own property restitution and compensation funds in order to relieve their budgets of this potential burden. Nevertheless, the national government continues to argue that the existing system remains the best method for settling private property claims. The Prime Minister and the Minister of Administration and Digitalization have recently promised to try to look for ways to make the courts speedier and easier to use. To date, however, we have not heard or seen the results of this investigation.

Romania

The situation in Romania is, to say the least, confusing. Today I shall confine my remarks to the issue of private property; the World Jewish Restitution Organizations’ website has an excellent description of a similar lack of clarity with communal property, so I shall not go into that here. In January 2011, the European Court of Human Rights (ECHR) gave Romanian authorities until July of this year to solve the problem of returning property seized during the communist era. This followed what it calls a pilot decision in two separate cases lodged against Romania. A pilot decision leads to the suspension of all similar lawsuits before the court until the problem is resolved. Around 1,500 cases were pending at the ECHR before the Court decided to suspend all of them until Bucharest amends its current legislation and creates an effective compensation system.

Progress on restitution in Romania has been slow. So far, although statistics seem to vary, it has resolved only about 11 per cent of all restitution claims. Moreover, it has also been marked by corruption and the process has stopped entirely until April 2013 in order to investigate improprieties. Some properties have been illegally given to people who forged ownership documents or inheritance papers. Illegal payments worth hundreds of millions of euros are also said to have made to fake owners while the files of the real owners of properties remain in the archives of the Property Restitution Agency.

Before a series of political crises hit—the latest of which is occurring now and is called by some a “legal coup”—Romania’s government had prepared a new law to satisfy the court. If adopted, it would compensate former owners of properties confiscated by the Communists in the amount of fifteen per cent of the value of their lost assets over a period of at least a decade with no restitution in kind available. The government argues that this is the best it can do; it does not have the funds to compensate all former owners for what they have lost. Among other things, however, this raises fundamental issues of fairness. Under the previous restitution regime, some properties were returned, while for others former owners received full monetary compensation.

Romania has successfully petitioned the court for a nine-month extension of the deadline to comply with its ruling. This will push the deadline for compliance back to March of next year. All of this discussion, it also appears, pertains to properties seized or nationalized after 1945. What happens to heirless Jewish property in Romania, for instance, appears still to be an open question.

Serbia

Serbia established a new government agency for property restitution in January of this year. The agency began accepting claims for seized property on March 1. When I visited two months ago, at least seven properties in Belgrade and two buildings in Novi Sad had been awarded to claimants.

The Restitution Law, which created this agency and which went into effect October 2011, applies mainly to property seized by the Yugoslav Government since the end of World War II, but it also includes special coverage for victims of the Holocaust, who are authorized to reclaim property confiscated by Nazi occupation forces. It provides for restitution of property in-kind, when possible. For cases where in-kind restitution is not possible, Serbia has allocated two billion euros, which is payable in bonds, for financial compensation. Claims for nationalized property may be filed through March 2014; as of mid-May, the Agency had already received more than 1,500 claims. The restitution law caps the amount of compensation that any single claimant can receive at 500,000 euros (approximately $640,000). American citizens may file claims under the new law.

Work still remains to be done in order to bring Serbia’s religious and private property restitution systems into line with one another. Right now there are two separate laws on the books; one governs the restitution of religious properties and another private property. This creates a disparate set of principles for the return of such properties, which can only cause confusion, if not legal challenges.

In addition, the new Restitution Law states that the issue of heirless properties will be addressed by a separate law. Unfortunately, progress on drafting the new law stalled during the recent election campaign.

European Shoah Legacy Institute

The Terezin Declaration—which, as many of you know, was issued by the forty-some states that participated in the Holocaust Era Assets Conference organized by the Czech Republic and its partners, most notably the United States, in Prague and Terezin from 26-30 June 2009—among many other things, declared this:

Further to these ends we welcome and are grateful for the Czech Government´s initiative to establish the European Shoah Legacy Institute in Terezin (Terezin Institute) to follow up on the work of the Prague Conference and the Terezin Declaration. The Institute will serve as a voluntary forum for countries, organisations representing Holocaust (Shoah) survivors and other Nazi victims, and NGOs to note and promote developments in the areas covered by the Conference and this Declaration, and to develop and share best practices and guidelines in these areas and as indicated in paragraph four of Immovable (Real) Property.

In accordance with this Declaration, the Czech government created the European Shoah Legacy Institute as a non-governmental organization under Czech law. It has a director, a staff of three or four, and a number of associated bodies—an Administrative Board, a Supervisory Board, an Honorary Board, and an Advisory Council divided into working groups corresponding to the various sub-sections of the Terezin Declaration. Although no official of the United States government is a member of any working group, many other countries have designated officials to join these working groups. The Institute’s financial support comes almost solely from the Czech Ministry of Foreign Affairs, although, as I shall explain in a moment, the United States government has recently followed the Claims Conference’s lead in awarding it a grant.

The Terezin Declaration assigned the European Shoah Legacy Institute a number of specific tasks and duties. For our purposes this morning, Paragraph Four of the section of the Declaration devoted to Immoveable Property becomes particularly relevant. It stated this:

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…

In line with this facilitation effort, most—but not all—of those states that had joined consensus on the Terezin Declaration also joined consensus in Prague on June 9, 2010 on a document with the unwieldy title of Guidelines and Best Practices for the Restitution and Compensation of Immovable (Real) Property Confiscated or Otherwise Wrongfully Seized by the Nazis, Fascists and Their Collaborators during the Holocaust (Shoah) Era between 1933-1945, Including the Period of World War II. The final guideline of this document said this:

In order to review progress achieved on restitution and compensation of immovable (real) property, the European Shoah Legacy Institute will offer to host a conference in 2012.

The European Shoah Legacy Institute, which no longer seems to be called the Terezin Institute, did indeedoffer to play host to such a conference this year. A grant of $300,000—two-fifths of our five-year pledge to support this Institute— from the United States government seems to have helped prompt this generous offer.

The conference is now scheduled to take place during the last week in November. Exactly what will happen there, however, is still the subject of some discussion. At the moment many hands are making light work of this planning. The Czech Foreign Ministry, for instance, has created a Steering Committee under the joint direction of First Deputy Minister Jiri Schneider and Ambassador Stuart Eizenstat; most of this committee’s other members are drawn from the Immoveable Immovable Property Working Group of the Institute’s Advisory Council. Five or six Ambassadors in Prague—the U.S., the Israeli, the French, the Austrian, and the German, and at times the British as well—also form an informal grouping called “Friends of the Institute” that takes an active part in planning for the conference. In addition, the grant issued by the U.S. government contains some guidelines and strictures of its own. One preparatory meeting took place in June; a second is scheduled for October. As a result of the first, the European Shoah Legacy Institute’s website now contains a program for the review conference itself. I am, however, not entirely confident this will be the last word on the subject.

Other European Institutions

Finally, I should like to close with a brief comment on the potential role of some European inter-governmental institutions in advancing Holocaust-era property restitution and compensation in Europe today. In my two years on the job I have often heard criticism directed at the European Union for not doing more. Unfortunately Article 222 of the founding document of the Union, the Treaty of Rome, explicitly states this:

This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.

To the best of my knowledge, none of the subsequent treaties among the member states of the European Union have modified or amended this article in any way. Thus it remains legally difficult for Brussels to impose its will when it comes to property matters on its member states. As a conference arranged by B’nai B’rith in January of this year suggested, there may be some interest in the European Parliament in addressing this issue. As far as I can tell, though, this would mainly be through exerting pressure on national parliaments. It would not appear as if the European Parliament’s role as “co-legislator of EU law” with the Council of the European Union will otherwise permit it to enter too deeply into this issue.

It seems to me that another institution with a seat in Strasbourg—the Council of Europe—may offer another avenue of approach to this issue. The Council of Europe has forty-seven member states—a geographically and numerically broader membership than the European Union. Although its members are not precisely the same as those states that joined consensus on the Terezin Declaration, the overlap is considerable. It also has the European Court of Human Rights, which rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights and Fundamental Freedom.

The first protocol to the European Convention on Human Rightsbegins with an article on the Protection of Property. The first of the two paragraphs of this article states:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

As we have noted in the discussion of Romania, the decisions of the Court do hold sway over member countries of the Council of Europe. The European Convention on Human Rights is, after all, a treaty, and member states of the Council of Europe are obliged to execute the decision of the European Court of Human Rights. I will therefore leave you with the thought that this means of possible recourse may be worth further exploration.

Thank you.



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