Review: Rükerstattung Nach Den Gesetzen Der Alliierten Mäcthe
Rükerstattung Nach Den Gesetzen Der Alliierten Mäcthe
by Walter Schwartz (Munich: C.H. Beck. 1974) Pp. 394.
When Justice Robert H. Jackson, the US Prosecutor, stood before the International Military Tribunal at Nurnberg he described the Nazi crimes as “so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.” After nearly a quarter of a century of silence the Federal Republic of Germany now draws aside the curtain to reveal the historical record of the efforts to redress some of the injuries caused by Nazi persecution. Dr. Walter Schwartz, an Israeli lawyer and restitution specialist who was the inspiration for the publication project, analyses the legislation enacted by the occupying Allied Powers themselves for the restitution of identifiable property. He recounts the story of how American, British, French, Soviet and German juridical concepts were challenged to cope with unparalleled legal problems having moral, political and economic ramifications. His perceptive study is comprehensive, scholarly and profound.
Those Jews and non-Jews alike who “for reasons of race, religion, nationality or political opposition to National Socialism” were viewed as enemies of the Reich had been systematically dispossessed of their homes, their businesses, and eventually all of their assets, as part of a brutal program of persecution and annihilation. Restitution was one of the declared objectives of the war. When Germany surrendered unconditionally the occupation forces assumed the obligation of establishing a new order of law. Monetary compensation to the victims seemed economically impossible and the first impulse was to return to the rightful owners whatever remained intact of the property which had been wrongfully taken from them.
Attempts to enact occupations laws for Germany as a whole foundered under the weight of emerging cold-war rivalries. The French were loathe to encourage anything which might tend to unify their defeated enemy. The Soviets saw no need to reestablish private property rights. Different laws were to be enacted for each of the different zones of occupation.
The prime mover in the restitution field was the United States. As an occupying power exercising legislative authority it could reach beyond the traditional boundaries of concern only for its own nationals, and it had the benefit of the views of distinguished jurists to whom it had given refuge from Nazi persecution. The United States called upon German officials to draft what was hoped would be a law of the German States in the United States Zone. Nine drafts were submitted, and although Dr. Schwartz has high praise for their contents and their authors, all were in turn found unacceptable, so that the United States finally enacted its own Military Government Law No. 59 for the Restitution of Identifiable Property. The United Kingdom was to follow with a similar law for the British Zone. The French, turning to their own experience with restoring property to French nationals in occupied France, enacted a substantially different law in the Zone, and eventually an amalgam of the three was ordered for the western sectors of occupied Berlin. The Soviets countenanced a restricted restitution ordinance in the State of Thuringia under their control, but it was of limited impact and duration.
The restitution procedures adopted for the western zones and sectors of Berlin were all basically similar. Property was taken under Military Government control, those with claims were required to file detailed petitions by a fixed deadline, special agencies were created to mediate the claims, and if settlement failed the action was referred to chambers of the German judicial system, with access to the German appellate courts, and finally to a Court of Restitution Appeals composed initially of allied judges and later changed to a mixed court as German sovereignty was restored.
The substantive content of the restitution laws was by no means as clear. The military decrees provided only limited guidance to judges who would confront problems lacking both historical and judicial precedent. Nazi duress, cloaked with the sanction of law, had property for sale in order to gain funds for emigration, while others had transferred title out of fear, direct threats or outright seizure. The buyers maintained that they had paid a fair market price, had substantially improved of altered the property or had acquired a valid deed from an innocent third party. On whom should the burden of proof rest, and how could it be met? If the transaction was to be declared void and each party restored to the status quo ante, what would happen to the purchase price which was not actually received by the persecuted seller because Nazi law required that it be deposited into a blocked account? What if the property had been damaged of destroyed or disappeared? One of the most vexatious problems related to who would bear the burden of the currency reform which revalued the old Reich Mark at less than one-tenth of the new Deutsche Mark. There are only a few of the complex questions dealt with as Dr. Schwartz analyzes over 4500 decisions of the restitution courts to extract his portrait of the new precepts which emerged as the restitution program was carried out. The author does not refrain from expressing his own views as to the wisdom or folly of the action taken in the various jurisdictions.
The book is embellished with a brief sketch of post-war restitution efforts in the countries which had been under Nazi occupation or domination. In the Western States of France, Italy, Holland, Norway, Denmark and Greece, local laws revoked the discriminatory Nazi decrees and scant consideration was given to the profiteers, who were viewed as collaborators. Romania, Hungary and Bulgaria, as allies of the Germans, had enacted their own discriminatory laws, which were repealed after 1945 and title to property which had been seized by the State was retransferred on the record to the original owner. Real restitution was poorly implemented and in anti-semitic areas like Poland public pressure impeded the return of property to Jewish survivors. With the coming into power of communist regimes in Eastern Europe and East Germany, all private property was nationalized and became property of the State, as the victims were twice dispossessed. How the German Democratic Republic of Eastern Europe of Eastern Germany turned its back on the surviving Nazi victims outside its borders is a story yet to be told.
Dr. Schwartz makes a noble attempt to sum up the statistical picture in charts based on US figures which were good, British figures which were inadequate, and French figures which were secret. His conclusion that about 100,000 persons received the return of real estate, businesses, securities and other assets valued at between 3 and 3½ billion DM, out of more than double that amount which had been taken, can only be seen as a courageous approximation. The last of a series of “Reports on Germany,” by the US High Commissioner, John J. McCloy, contained an excellent and graphic summary of restitution in the US Zone, which may have escaped Dr. Schwartz’s attention.
The author recognizes that the law was not punitive, although there were some hardships. He conveys his sympathy for the German judges faced with the problems beyond the traditional scope of German legal concepts and he cannot conceal his disdain for some of the Allied decisions. He acknowledges that the completion of the program in about 5 years time, with some 95% of the cases settled without going to court, was a substantial achievement.
Any publication sponsored by a government agency carries the suspicion that it is motivated by self-serving purposes. Dr. Schwartz has tired to approach his subject with objectivity. There can be no doubt that there wee some German officials, like Otto Kustler to whom the book is dedicated, who out of profound moral conviction sought to return Germany to a path of integrity and law, by whether the restitution program was, as Dr. Schwartz says, “a manifestation of the human conscience” (at p. 384), or whether it was justice imposed over general German opposition, may be subject to dispute.
Despite a clear Table of Contents the omission of an index to this scholarly study is most regrettable. Other scholars may have to turn to the well-indexed Decisions of the Court of Restitution Appeals published in English and German by the Allied High Commission. No study of the Military Government restitution laws would be complete without including the major work done by the charitable successor organizations appointed to recover the heirless and unclaimed Jewish property of individuals and congregations. Dr. Schwartz has deliberately omitted any such reference since it is to appear in a later volume of the series. In dealing with property losses, Volume I discloses only the tip of the Weidergutmachung iceberg. Later volumes and other authors will describe how millions of Nazi victims were indemnified by the Federal Republic of Germany for their personal injuries, including loss of life, imprisonment in concentration camps, permanent damage to their health, deprivation of professional and other earnings; how the victims of medical experiments were paid, the basis for reparations payments to Israel and bilateral accords with other countries. It will be hard to match the standard set by Dr. Schwartz in the best book written to date on a subject about which there is still a great deal of sensitivity throughout the world.
* Member, Taylor, Ferencz and Simon, New York.