Published:

February 27, 2019

 

The Justice for Uncompensated Survivors Today Act, S. 447, passed the Senate on December 12, 2017. A related House Bill H.R.1226 was introduced in the House of Representatives. The texts of both bills S. 447 and H.R. 1226 were similar. Both Bills introduce the enforcement mechanism for the non-binding 2009 Terezin Declaration on Holocaust Era Assets and Related Issues.

 

The bills mandate the US Department of State to report to Congress on “countries of particular concern” regarding the progress on: 1) returning to the rightful owner any property wrongfully seized or transferred, including religious and communal properties; 2) providing property or compensation for the so-called heirless property in order to assist needy Holocaust survivors, to support Holocaust education, and for other purposes. Bill H.R. 1226 was withdrawn while Bill S. 447 passed the House of Representatives and was signed into law on May 9, 2018, Public Law No. 115-171 (“Bill”). 1/

1. The Bill Violates Law, Equity and International Treaty

A. Restitution for so-called “heirless property” is against the law

Bill S. 447 enforces demands of compensation for “heirless” Jewish properties "to assist needy Holocaust survivors, to support Holocaust education, and for other purposes. . ." Of greatest concern to the Polish American community is the demand that Poland pay compensation in the range of 300 billion US dollars for “heirless” Jewish properties in Poland to Jewish organizations for “other purposes.”

If there are no heirs, the property is not "wrongfully seized or transferred," as claimed in the Terezin Declaration. Such property legally escheats to the state. That's the law in every civilized country. The Bill introduces a precarious precedent of compensation for "heirless” Jewish property to private Jewish organizations. This tribal concept is contrary to the Western legal tradition and principles of jurisprudence. It also has a clear discriminatory effect towards the private Polish and Polish American organizations that could have the same claims to “heirless” Polish properties.

The notion of "restitution of heirless property" is an aberration by definition. "Restitution" means the restoration of something to its rightful owner. If the property is "heirless" then, by definition, restitution of the property to the rightful owner is impossible. The property might have been "wrongfully seized or transferred" originally, but if the property is now heirless, it escheats to the state. That's the law everywhere, including the United States.

The Bill calls on the Secretary of State to present reports that are to address "wrongfully seized or transferred Holocaust era assets." The purpose of such reports is to “name and shame” those who do not comply. Such reports must not include compensation for "heirless” properties, which always and everywhere legally escheat to the state. Such escheat is lawful and legal, regardless of whether the property was earlier wrongfully seized or transferred.

This issue is of crucial importance to the Polish-Americans since most of the heirless property claims are against Poland. Creating ex post facto a legal precedent of property restitution to “non-heirs” for “other purposes” amounts to extortion of funds from “other” uncompensated victims of the German WWII genocide, i.e. the Polish victims. Such scheme treats the Polish taxpayers, themselves uncompensated victims of German genocide whose properties were wrongfully seized, as those who are to compensate the Jewish victims for German and Soviet atrocities committed on the conquered Polish territory, hence it is gravely unconscionable.

Finally, the establishment of the rights of Jewish organizations to heirless property of the Jewish people all over the world introduces a concept of a tribal law and tribal rights to the non-tribal legal tradition of the US law. Such precedence will lead to the rise of tribal claims by Native Americans and others in the United States.2/

B. Compensation for private property in Poland already paid to rightful owners

In calling for the return to the rightful owner of a property that was “wrongfully seized or transferred,” the Bill violates the Agreement between the Government of the United State of America and the Government of the Polish People’s Republic regarding claims of nationals of the United States signed at Washington on July 16, 1960, and registered with the United Nations by the United States of America on January 6, 1961 (“1960 Treaty”).

 

Under the 1960 Treaty, Poland paid the United States $40 million in full settlement of claims of nationals of the United States for nationalization or other taking of property, appropriation or loss of use of their property and debt owed by enterprises taken over by the State.3/ The $40 million paid pursuant to the 1960 Treaty represents over a billion dollars in 2017. Hence, this substantial compensation was intended to settle property claims against Poland by US nationals. In accordance with Article IV of the 1960 Treaty, the United States agreed to fully indemnify Poland for any property claims of US nationals, which occurred on or before the entry into force of the 1960 Treaty.4/

On March 31, 1966, the Foreign Claims Settlement Commission of the US completed its administration of the Polish Claims Program pursuant to the 1960 Treaty and submitted a final report to Congress. The principal amount of awards under the Polish Claims Program totaled $100,737,681.63 plus interest in the amount of $51,051,825.01. 5/

Accordingly, in light of the contractual obligation of the United States to provide indemnity to Poland for private property claims, the enactment of the Bill that directs the US Secretary of State to pressure Poland to pay further private property claims to American Jews violates the contractual obligation of the United States.

Also, it shall be noted that between 1948 and 1971, Poland concluded property restitution and compensation treaties not only with the United States but also with Austria, Belgium, Canada, Denmark, France, Great Britain, Greece, Holland, Luxembourg, Norway, Sweden and Switzerland. All claims for property located in Poland by the citizens of these countries have been since settled in full and discharged.

Furthermore, since 1989, all legitimate property claims of private individuals can be freely pursued before the Polish courts in accordance with the provisions of the Civil Code. Every person regardless of their nationality or ethnic origin may enforce their property and inheritance rights before the Polish courts in accordance with the procedures of the Code of Civil Procedure. Hence, every individual with a right title can file a request for declaration of the acquisition of the inheritance. Thousands of people with legitimate title claims - regardless of their ethnic origin - have recovered their properties in Poland pursuant to the private property law.

C. Religious and communal property returned or compensated for in Poland

The return of Jewish religious and communal properties has been implemented in Poland pursuant to the 1997 law on the relationship between the Polish State and Jewish religious organizations. 6/ On the basis of this unprecedented legislation, Poland granted the Jewish minority broad decision-making powers in the implementation of this legislation. The Commission for the Jewish Communities Affairs carried out the restitution of Jewish religious and communal properties in close cooperation with the Union of Jewish Communities. 7/ Over 2,500 communal properties, including synagogues, cemeteries and cultural centers, have been either returned or compensated for based on the 1997 Polish law. The returned communal properties, sometimes totally destroyed during the war, in most cases had been returned after renovation. Accordingly, practically all religious and communal properties with adequately documented ownership have been either returned or compensated for by now. Therefore, claims for this type of property restitution have been settled in Poland.

D. Multiple compensations for the same loss are wrong in law and equity

Poland has been helping needy Holocaust survivors of Jewish descent on an on-going basis. All Jewish Holocaust survivors of Polish origin are eligible to receive monthly pension from the Polish Government pursuant to the law on war veterans and victims of war and post-war oppression. Thus, all Holocaust survivors who were Polish citizens during WWII have been receiving monthly assistance from the Polish Government regardless of their current place of residence. This pension is provided to many Jewish Holocaust survivors living outside of Poland. Accordingly, the heirless property claim based on an appeal to assist needy Holocaust survivors is duplicative with respect to Poland. 8/

 

In addition to the above compensation and compensation pursuant to the 1960 Treaty, Poland has implemented numerous laws and procedures under which WWII private property claims can be more or less effectively pursued before the Polish courts under the inheritance law. The attempts to reform the Polish judiciary in order to imporve this system have been blocked by the European Union.

 

Furthermore, on September 10, 1952 in Luxemburg the Federal Republic of Germany entered into an agreement with the State of Israel regarding Jewish claims for damages caused by the German Nazi Socialist regime of terror (Luxemburg Agreement). Since 1952 Germany has paid the equivalent of over 100 billion dollars to Jewish individuals, Jewish organizations, and the State of Israel. According to Protocol 2 of the Luxemburg Agreement, Germany admited that the German National Socialist regime of terror confiscated vast amount of property and other assets from Jews "in Germany and in territories formerly under German rule," and agreed to pay 450 million Deutche Mark to the Conference on Jewish Material Claims against Germany that consisted of 23 Jewish organizations. 9/ Accordingly, under the Luxemburg Agreement Germany paid compensation to needy Jews outside Germany. These payments covered all of the Jewish property seized and expropriated by Germany during WWII, including the immovable property located on the Polish territory conqured by the Third Reich, hence "under German rule."

 

2. The Bill is Unconstitutional

The US Congress did not have the constitutional power to enact this Bill.
Rule XII Clause 7(c) of the House of Representatives requires that all bills and joint resolutions provide a document stating "as specifically as practicable (…) powers granted to Congress in the Constitution to enact the bill or joint resolution" to be accepted for introduction by the House Clerk.

According to the Constitutional Authority Statement, Congress had the power to enact S. 447 pursuant to Article I Section 8 Clause 3 of the Constitution of the United States. 10/ The cited clause of "Article I Section 8 Clause 3" is commonly known as the Commerce Clause. 11/ It gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Clearly, S 447 is not related to the regulation of commerce and the Commerce Clause because it deals with the welfare of Holocaust survivors. Perhaps this legislation is intended to gather information, under Congress' investigatory power, to be used in future legislation that would impose sanctions on countries that are deemed not to have made sufficient progress towards the Holocaust (Shoah) restitution claims. If so, this purpose should be stated explicitly in the Bill.12/

3. The Bill is grossly Discriminatory in Nature

The Bill refers to the Terezin Declaration adopted at the 2009 Holocaust Era Assets Conference held in Terezin, Czech Republic. The Terezin Declaration is concerned with the welfare of the Holocaust survivors. Throughout the text, the Terezin Declaration defines Holocaust survivors as "Holocaust (Shoah) survivors and other victims of Nazi persecution." However, in the key section entitled "Immovable (Real) Property" a narrower definition of Holocaust victims is used. Only "Holocaust (Shoah) victims" are included in the real property restitution section while “other victims of Nazi persecution” are clearly excluded from such restitution claims. Clearly the use of the term "Shoah" restricts those entitled to real property compensation to Jewish victims only. It boldly excludes “other victims of Nazi persecution” such as Polish Holocaust Survivors. The Polish Americans are deeply concerned that millions of ethnic Polish victims of Nazi Germany are treated as “other victims of Nazi persecution” in the Terezin Declaration and are boldly excluded from real property restitution claims in particular.

The United States must not discriminate against racial, ethnic or religious groups whose members may be in the exact same situation as the Jews. Millions of non-Jews, mostly Christians, were killed by the Germans in WWII. In particular, three millions of ethnic Poles and three million of ethnic Jews were killed in Poland in WWII. The Polish victims of German genocidal operations must not be excluded from any WWII restitution claims. Otherwise the Bill that aims at providing moral, legal and political support to the Terezin Declaration stands as a symbol of immorality, favoritism, undue influence, and outright discrimination.

The Bill would require the US Secretary of State to submit a report "that assesses and describes the nature and extent of national laws and enforceable policies" of "covered countries" regarding the "identification and the return of or restitution for wrongfully seized or transferred Holocaust era assets." The report would also assess and describe the covered countries' progress towards meeting the goals and objectives of the 2009 Holocaust Era Assets Conference.

The Bill gives the Secretary of State in cooperation with the Holocaust Envoy the power to determine, "in consultation with expert nongovernmental organizations" whether the proposed law applies to a particular country. The term "expert nongovernmental organizations" is one of several unacceptable ambiguities in this Bill. Requiring the Secretary of State or Special Envoy for Holocaust Issues to consult with undefined NGOs before choosing "covered countries" gives the Secretary or Envoy full discretion and the selected NGOs the opportunity to exert undue influence on Poland. Such language invites claims of bias and discrimination against ethnic Poles, Poland, and the Polish American community. More so, considering that the compensation for so-called “heirless” property is intended to support Jewish organizations. The same Jewish organizations with vested interest in receiving “heirless property” compensation could be considered as “expert nongovernmental organizations” for purposes of this Bill.

The NGOs that are to be consulted in designating “covered countries” should be explicitly named. As most of the potential claims will involve Polish properties, the Polish-American NGOs shall be clearly identified for consultation purposes, and Poland should be given full opportunity to be heard. Poland and the Polish Americans should give input and present their position regarding the issues involved before any decision to apply the Bill to Poland is made.

4. The Bill is Duplicative of ESLI Study

The US Secretary of State report required by the Bill would be duplicative of a comprehensive study published after the Bill was introduced. In accordance with the Terezin Declaration, in 2010 the Czech government established the European Shoah Legacy Institute (ESLI) in Terezin to monitor the progress and advocate for the principles of the Terezin Declaration. 13/ In fulfillment of its mission, ESLI commissioned in 2014 the Holocaust (Shoah) Immovable Property Restitution Study (the “Study”). Published on April 24, 2017, 14/ the Study is the comprehensive compilation of the legislation passed by the 47 states since 1945, dealing with the return or compensation of land and businesses confiscated or otherwise misappropriated during the Holocaust era. 15/

According to the Executive Summary of the Study, Jewish and non-Jewish claimants, heirs, governments, NGOs, and other stakeholders will now have a one-stop resource where all significant Holocaust restitution legislation and case law dealing with immovable property over the last 70 years has been compiled and analyzed.

Therefore, any report pursuant to S. 447 substantially duplicates the ESLI's Study Report. The cost of a US Secretary of State report is estimated by the Congressional Budget Office to be less than $500,000. That money is wasted because most of the work has already been done. Therefore, the Bill’s duplicative objectives represent waste of government money.

5. Genocide Denial Underlines the Premise of the Bill

The Executive Summary of the Study states: "In the aftermath of the Holocaust, returning victims – not only surviving European Jews but also Roma, political dissidents, homosexuals, persons with disabilities, Jehovah’s Witnesses, and others – had to navigate a frequently unclear path to recover their property from governments and neighbors who had failed to protect them, and often, who had been complicit in their persecution." 16/

The above statement is of grave concern to the Polish Americans because it excludes from the definition of victims the second-largest group of victims of German WWII genocide, i.e. ethnic Poles. These victims are either omitted all together or covered under the offensive term "others." The omission of such important group of German victims is not coincidental considering that almost half of all Holocaust (Shoah) real estate restitution claims under Terezin Declaration are against Poland, thus indirectly against the Polish victims of the Holocaust.

It shall be noted that Poland was the greatest victim of WWII in terms of the loss of human life and treasure. In 1939 Hitler declared: “The destruction of Poland shall be the primary objective. The aim is elimination of living forces, not the arrival at a certain line.” In March 1940, Himmler instructed commanders of German concentration camps set up on the conquered Polish territory as follows: “It is imperative that the great German nation considers the elimination of all Polish people as its chief task.” 17/ Hans Frank who ruled conquered Poland echoed this order as follows: ”The Fuhrer stated explicitly that … the German Reich had to fulfill the hard task of finishing the Poles at all costs.” 18/ Frank proudly quotes in his diary the statement by SS. Dr. Schongrath that “no people has ever before had to suffer such oppression as that being suffered by the Polish people.” 19/ About equal number of ethnic Poles and ethnic Jews perished in WWII. About 40% of Poland's national assets were totally destroyed. Most of the Polish infrastructure was ruined. Warsaw and many other cities were leveled to the ground, experiencing destruction and devastation beyond comprehension and compare.

The marginalization of the Polish victims, systemic efforts to diminish the suffering of ethnic Poles, suppressing their voices, their stories, their experience, and ignoring their interests by proponents of the Holocaust (Shoah) restitution claims is directed against one of the most persecuted groups by Nazi Germany. Such treatment of the Polish victims of German WWII genocide represents not only grave distortion of history but also constitutes genocide denial. Such actions are morally repugnant, grossly unjust, hence contradictory to the stated objectives of the Terezin Declaration and the Bill that supports it.

Recommendations

Considering all the above, the Polish American community urges the US Congress to object to the discriminatory treatment of “other victims of Nazi persecution” by the Terezin Conference with respect to real property restitution claims, and to reject the enforcement of any “heirless property” compensation schemes that are discriminatory to non-Jewish victims of the Holocaust, contrary to US law, Western legal tradition, and detrimental to the long-term interests of the United States. Such claims are also deeply immoral because they turn the Polish victims of German oppression into those responsible for German crimes committed in occupied Poland – thus turn victims into villains.

Furthermore, it is the request of the Polish American community that Special Envoy for WWII Genocide on Ethnic Poles be established at the same administrative level as the Special Envoy for Holocaust of the Jews. Such Envoy on WWII Genocide of Ethnic Poles shall be consulted on any WWII restitution issues, whether against Poland or on behalf of Poland.

 

FOOTNOTES

 

1. Public Law No: 115-171 (05/09/2018), See: https://www.congress.gov/bill/115th-congress/senate-bill/447

 

2. Historically, such legal precedence had been applied by an ensemble of Jewish organizations, linked together in the Claims Conference against Germany established in 1951, which raised demands for compensation, reparation and restitution. Formative as a matrix here was in particular the fact that the reality of the genocide perpetrated by Nazi Germany and the resultant phenomenon of “heirless property” brought about a kind of transformation in the web of claims in civil law, raising these to a public level of quasi-international law — in this way enabling the "Jewish people" to constitute itself as the claimant putting forward a collective demand (See: Dan Diner, Gotthart Wunberg “Restitution and Memory: Material Restoration in Europe”). Applying the above claim demands to Poland, another victim of the genocide perpetrated by Nazi Germany, would destroy the foundations of international law, duplicate the compensation already made by the Federal Republic of Germany to Israel, legalize the attempted robbery by self-appointed US claims organizations and mix the Polish victims with the German perpetrators. Should such a tribal law concept be applied again, then Germany would have to first compensate Poland and the Polish victims analogically to the Luxembourg Agreement of 1952 between Germany and Israel. Poland should not compensate the self-appointed claims organizations.

 

3. Art. II of the 1960 Treaty provides compensation for the following: (a) the nationalization or other taking by Poland of property and of rights and interests in and with respect to property; (b) the appropriation or the loss of use or enjoyment of property under Polish laws, decrees or other measures limiting or restricting rights and interests in and with respect to property, and (c) debts owed by enterprises which have been nationalized or taken by Poland and debts which were a charge upon property which has been nationalized, appropriated or otherwise taken by Poland.

 

4. Article IV of the 1960 Treaty provides: After the entry into force of this Agreement the Government of the United States will neither present to the Government of Poland nor espouse claims of nationals of the United States against the Government of Poland to which reference is made in Article I of this Agreement. In the event that such claims are presented directly by nationals of the United States to the Government of Poland, the Government of Poland will refer them to the Government of the United States.

 

5. Final Report of the Polish Claims Program, Foreign Claims Settlement Commission of the U.S. https://www.justice.gov/sites/default/files/pages/attachments/2014/10/22/polish_final_report.pdf

 

6. Law dated February 20, 1997, DZ. U. 1997 No. 41 Item 251.

 

7. Art. 32.1, 1997 Law.

 

8. Polish Benefits for Holocaust Victims of Polish Origin, see https://wjro.org.il/polish-benefits/

 

9. The Agreement between the Federal Republic of Germany and the State of Israel dated September 10,1952 and ratified by Germany on March 21, 1953.

www.poloniainstitute.net/wp-content/uploads/2019/02/Luxemburg-Agr-Sept-10-1952.pdf

 

10. See: https://www.congress.gov/bill/115th-congress/house-bill/1226 From the Congressional Record Online the Government Publishing Office; By Mr. CROWLEY: H.R. 1226 - the following: Article I Section 8 Clause 3, US Constitution [Page H1355].

 

11. https://www.law.cornell.edu/wex/commerce_clause.

 

12. Even in the area of commercial law, the application of US legislation is limited. In 2010, the Morrison v. National Australia Bank case, the U.S. Supreme Court ruled that securities traded outside the U.S. are no longer within U.S. jurisdiction, effectively forcing actions against securities traded on foreign exchanges to be pursued outside of the United States. The case changed the global landscape for class action recoveries. Gosman, Rise of International Claims Filings, http://frtservices.com/the-rise-of-international-claims-filings

 

13. See the ESLI website: http://shoahlegacy.org

 

14. According to the World Jewish Restitution Organization website, the Holocaust (Shoah) Immovable Property Restitution Study was published on April 24, 2017.

 

15. http://shoahlegacy.org/property-issues/immovable-property/immovable-property-study-2014-2017. Prof. Michael J. Bazyler and Lee Crawford-Boyd led the project, which brought together the research efforts of over 40 pro bono attorneys from major global law firms, including White & Case, O’Melveny & Myers, Morgan Lewis, Fried Frank, and Brownstein Hyatt Farber & Schreck. These pro bono attorneys, under the guidance of Firm directors and associates, completed research reports addressing the status of restitution legislation in an assigned Terezin Declaration country. In addition, the reports provide a preliminary analysis of the country’s compliance with its Terezin Declaration commitments. The Study is available in three versions: The first one is a 1200-page interactive PDF document that can be downloaded in full from this website; the second is an interactive map organized from which individual country reports can be downloaded; and the third is a hard-copy publication of the study through Oxford University Press, which we consider an enormous achievement confirming the high quality and standard of the study.

 

16. Executive Summary, 2014 Holocaust (Shoah) Immovable Property Restitution Study, p. 1.

 

17. Piotrowski, Poland’s Holocaust, Ethnic Strive, Collaboration with Occupying Forces and Genocide in the Second Republic 1918-1947, McFarland and Company, Inc. 1998, p.23

 

18. Cyprian, Sawicki, Nazi Rule in Poland 1939-1945, Polonia Publishing House 1961, pp.79-81.

 

19. Extract from Hans Frank Diary, Translation of Document No. 2233 PS (Nuremberg Exhibit USSR 223) Office of Chief Counsel, p.43.