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Diplomacy in Action

Remarks at B'nai Brith Policy Forum


Remarks
Douglas Davidson
Special Envoy for Holocaust Issues, Bureau of European and Eurasian Affairs
Rosslyn, VA
September 10, 2012

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Almost seventy years after the Holocaust finally came to an end, its ghosts still haunt us in many ways. We can see them in international criminal tribunals where perpetrators are brought to justice for committing crimes against humanity and genocide. We can see them in the increasing numbers of academic programs that link Holocaust and genocide studies. We can see them in the doctrine adopted by the entire international community called “Responsibility to Protect.” Just recently, too, speaking at the United States Holocaust Memorial Museum, which now has a Committee on Conscience dedicated to highlighting and combating present-day attempts at genocide, President Obama announced the creation of an Atrocities Prevention Board. He devoted half of that speech to the lessons of the Holocaust—the prime one being: “Never again.”

The Holocaust was a crime unparalleled in human history. Because of the dimensions of this crime and the historical legacy it has left, the United States government cannot ignore it. There is too much still left undone, too many wrongs still left unrighted, for that. For a variety of reasons, too, many people feel that only the United States has the ability to help others to deal with them. This is why the Department of State has an Office of the Special Envoy for Holocaust Issues.

Because the Holocaust was a criminal act, the search for justice and recompense must inevitably come into play. Unfortunately, experience has shown that there can never be perfect justice. The principal task of the Special Envoy for Holocaust Issues is thus to try to achieve a measure of justice—admittedly imperfect justice at best—for victims of the Holocaust and their heirs.

It has been rightly said that, in addition to being a crime against humanity of unique proportions, the Holocaust was also the largest theft in history. Someone has called it “grand larceny of an epic scale.” It is no accident, then, that the restitution of property, which includes works of art confiscated by the Nazis and their allies, currently forms the principal focus of the Special Envoy’s work.

Different countries in Europe have different records and different rates of success in returning property or in compensating for its loss. At the apex—perhaps understandably, given the Nazis’ central role in perpetrating the Holocaust—stands Germany, which, according to some calculations I have seen, has paid roughly one hundred billion dollars in various forms of compensation since the end of the Second World War. Austria and France, in different ways, came much later to admissions of complicity in the Holocaust, but they have now done so as well. Like Germany, each of these countries has set up various programs to assist and compensate victims of National Socialism. Other western European countries—The Netherlands, Belgium, even Switzerland, though granted the latter was in part moved to do so because of lawsuits against its banks in American courts—have also examined their pasts and, in smaller ways, tried to make amends.

Unfortunately, the farther east you go, into what we used to call “the new democracies” of Central Europe and beyond, the less the countries there have followed this example. To be sure, some of these new democracies in the early nineteen-nineties enacted laws that restored properties both taken by the Nazis and nationalized by the Communists. But often these were less than ideal, most commonly because they required one to be a citizen of the country to have one's property returned. For Holocaust survivors who had left and never returned back, and for their heirs, this was a difficult hurdle to overcome.

In other countries, most notably Poland, no attempt to adopt legislation that would deal with Holocaust property thefts has succeeded. In the Baltic states, where the extermination rate of Jews was extremely high, the return of Jewish communal property is still a sensitive political issue. After a decade of effort, Lithuania has finally adopted a law that would partly compensate the Jewish community for its losses, while we continue to urge Latvia to do the same. If you move even farther East—to Belarus, Ukraine, and Russia, which once also had large Jewish communities—the picture is even more bleak.

With each year that passes, this work grows more difficult. New generations rise to power with small memory and little knowledge of their Holocaust-related past. They have little feeling that they must make amends for what happened in their countries. Many equate their sufferings under Communism with what Jews underwent in the Holocaust. In addition, many of the very people we seek most to help —those who managed to survive the Holocaust—are not getting any younger. Their numbers decline every year. And as happens to all of us as we get older—you all clearly still have some years before you discover this—we develop physical infirmities and sometimes mental disabilities. For those who survived work camps and death marches in what should have been the prime of their lives, these infirmities and disabilities can be more severe than most of what Hamlet, in Shakespeare’s famous soliloquy, called “the ills the flesh is heir to.” What’s more, too many survivors—in this country, in Israel, and in Europe—live in poverty. This is why recent international meetings on Holocaust-era assets have put the use of heirless property to provide social and medical support to aging and indigent Holocaust survivors high on the agenda as well.

Our attempts to help survivors sometimes lead us to take positions that seem counter-intuitive to many. The prime example is probably Holocaust-era insurance. As part of a series of comprehensive settlements of litigation related to Holocaust-era claims facilitated by the United States Government during the Clinton Administration, the United States entered into agreements with Germany in the year 2000, and with Austria and France in January 2001. Under the first agreement, Germany paid roughly five billion dollars in various forms of compensation to Holocaust survivors. In return for these payments, the U.S. made something of a novel pledge. We said that, should people bring suit in Federal courts against German and Austrian companies (and French banks) for their conduct during the Second World War, we would recommend dismissal of those suits on any valid legal grounds. The short-hand term for this is “legal peace.”

Something like a tenth of the German compensation payments under this agreement went to the International Commission for Holocaust-era Insurance Claims—ICHEIC, for short. ICHEIC had actually been created a couple of years before by a combination of European insurance companies and American state insurance commissioners as an alternative to litigation. But this injection of cash gave ICHEIC some needed momentum. Over its almost-decade in operation ICHEIC received roughly a hundred thousand claims for insurance policies and paid roughly half of those. To be sure, two-thirds of those payments were in the amount of a thousand dollars. These were called humanitarian payments and were made to people who had a plausible story but no proof of an insurance policy.

ICHEIC was not always—as some people present here today can attest—a model of administrative efficiency. But it did provide a useful service, and it did thousands of people, albeit perhaps in a small way. But many survivors are convinced they were cheated. They believe that twenty billion dollars’ worth of insurance policies still lie hidden in the vaults of various European insurance companies, most notably Allianz of Germany and Generali of Trieste. They cite calculations by a certain economist to back this claim. Even though many reputable non-governmental organizations—not least B’nai B’rith—that were involved in ICHEIC cast doubt with good reason on these claims and these calculations, they persist.

They also lead to the introduction in every Congress of legislation that would facilitate suit against German and Austrian insurance companies. These bills would block the ability of the executive branch to file Statements of Interest with courts recommending dismissal of Holocaust-related claims against German and Austrian companies. They would also provide for suits against European insurance companies in federal courts and would validate state laws that allow for suit against European insurance companies in state court. These bills may effectively supersede a Supreme Court decision handed down in 2003 that said that a California state law allowing for lawsuits against insurance companies to recover unpaid Holocaust-era life insurance policies was in conflict with and preempted by federal government foreign policy prerogatives.

The State Department has consistently opposed such legislation. Because of this, we are often accused of depriving Holocaust survivors of their “day in court.” That is not the intent, but it does seem to be a widespread perception. I also suspect that, if these survivors were to get their day in court, they would find that the days would turn into months and the months into years. This is time and perhaps money that many of them do not have. Such litigation, after all, is rarely swift and smooth. The website of the Holocaust Survivor Foundation, which is one of the greatest advocates for the legislation perennially before Congress on Holocaust-era insurance, has an interesting section called “Generali Litigation Timeline 1997-2010.” Despite contentions that through the U.S.-German executive agreement we have denied survivors their day in court, this litigation proceeded after that agreement was signed and in 2008 resulted in a settlement, which was then appealed on the grounds, apparently, that it was not generous enough. Two years later the appeal was denied. Accordingly, the United States Government favors alternatives to litigation, such as ICHEIC, as a means of dealing with claims. We also advocate for open, transparent, and speedy processes for Holocaust-related property claims in Central and Eastern Europe that remove these claims to the extent possible from courts of law.

In many other ways, too, we seek additional support—medical, social, and other—for survivors, especially as they enter their final years. Their passing represents not just a personal loss for their families, friends, and admirers, but also for our society as a whole. Survivors are our best witnesses to—and the best teachers of—what happened in the Holocaust. When they are no longer with us, we shall need to find new ways to teach new generations about the Shoah. It is therefore a heartening sign that more and more museums and memorial sites are coming into existence. There is also an increasing array of governmental and non-governmental organizations dedicated to this work. The United States is, for instance, a founding member of the Task Force for International Cooperation on Holocaust Education, Remembrance, and Research. This task force began in 1998 with five members. Today it has thirty-one.

Similarly the United States also has a seat on the Board of Trustees of the German Foundation called Remembrance, Responsibility, and the Future, which was established by the agreement I mentioned a few minutes ago to make nearly two billion dollars in payments to forced and slave laborers. Once these payments were made, the German parliament, having set aside funds in the enabling legislation in order to keep the foundation operating in perpetuity, ensured that it became a grant-making institution, with an international board of trustees and with a mission to keep the memory of victims of National Socialism alive. Almost forty percent of its grants each year go to humanitarian programs to benefit former forced and slave laborers as they enter their final years; the remainder support Holocaust education and human rights programs designed to keep the lessons of the past in front of present and future generations. The Conference on Jewish Material Claims Against Germany, which celebrated its sixtieth anniversary this year, does similar work on a larger scale for Jewish survivors of the Holocaust in Europe, in Israel, in the United States, and around the world. It, too, devotes some of the funds it receives from Germany for this work to educational and cultural efforts so that the lessons of the Holocaust are not lost when the last survivor passes from the face of the earth.

As time passes and the Holocaust recedes farther into history, the importance of keeping the history and the lessons of the Shoah alive will only increase. If we fail to learn its lessons—that is, as Santayana would put it, if we fail to learn from the past—then we are quite likely to see something like it repeated again. I think we can all agree that that should not happen. This is why, I also think, there is much focus today on preventing present and future genocides through the study of the Holocaust. In fact, as far as I can tell, an increasing number of universities link Holocaust and Genocide Studies and place them together as a single unit of academic study. We should not see this as some kind of diminution of the Holocaust. It was, after all, Rafael Lemkin, a learned Jewish international lawyer originally from Poland who found refuge in the United States, who coined the term genocide. This term first appears, I believe, in a monograph he published in 1943 called Axis Rule in Occupied Europe in which he analyzed the crimes of the Nazis from a legal perspective. He saw genocide first and foremost as a crime.

From this notion of genocide as a crime many things have followed. Although the concept of genocide had not yet been adopted as an international crime, soon after war’s end the Nuremburg Tribunals placed many of the most important Nazi leaders in the dock for “crimes against humanity,” a new criminal charge, which it defined as: “Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” We can see the legacy of these Tribunals today in the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia, which both incorporate this legal concept. In the latter tribunal, too, government officials from Serbia, Croatia, and Bosnia and Herzegovina have been charged with a relatively new concept under international law—that of “Joint Criminal Enterprise.” It strikes me that the Holocaust was a Joint Criminal Enterprise on a vast scale, one that spanned an entire continent and beyond.

But it was also more than that. It was also an attempt to single out certain communities, most particularly the Jewish population of Europe, for blame and then for extermination, as if this particular group of people, along with Roma and the physically and mentally handicapped, and maybe even the Slavic peoples as well, were not only responsible for all the evils in the world but also did not belong in the same space as the predominant ethnic group, even if they had shared this space for centuries. As Lemkin put it, one of the lessons we learn from mass atrocities on such a scale is: that the diversity of nations, religious groups, and races is essential to civilization.

This seems to me a good lesson to impart to forthcoming generations. Genocide may at bottom be the worst crime a state can commit against its people, but it is also a function of the loss of a sense of the universality and commonality of those people—of a sense that we are all in this together. Where we single out others and condemn them for their differences from us, troubles inevitably follow. I saw it firsthand in my diplomatic service in the Balkans. There a term coined by another person who had to flee the Nazis, Dr. Sigmund Freud, applied. He described the “narcissism of small differences.” But these small differences were enough to lead to a conflict in the nineteen-nineties that caused the International Court of Justice to find that genocide had been committed in Srebrenica in eastern Bosnia and Herzegovina as well.

Still, the death and destruction in the Balkans or in Rwanda or in other areas of our modern world, however grim and gruesome they are, cannot be compared to that of the Holocaust. I would have said that the Holocaust was a unique event in history, if the prominent Holocaust scholar Professor Yehuda Bauer had not taught me to say “unprecedented” instead. He uses the latter term because he thinks that if we fail to derive the right lessons from it, such a thing could happen again. It is the hope and the goal of those of us who have been Special Envoys for Holocaust Issues that we can contribute to the search for imperfect justice and for a more perfect history and memory of the Holocaust so that those who come after us can truly say, “Never again.”

Thank you.



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