Seeking Fair Compensation - A Mission Impossible

Benjamin B. Ferencz

The treaty that was signed on September 10, 1952 was frequently referred to as a “Reparations Agreement,” which it wasn’t. That term usually applies to nations that have been at war. It was also known as the “Hague Agreement,” though it was signed in Luxembourg. Some called it the “Luxembourg Agreement,” but Luxembourg had nothing to do with it. The Israelis referred to it as the “Shilumim Agreement,” which no one understood if they didn’t speak Hebrew. In fact, none of the signatories had any reasonable conception of the magnitude of the obligations involved in the treaty they had just solemnly signed. It was the product of political considerations cloaked in moral garb, and heralded as a solution to some profound human and legal problems that, in fact, could never be resolved.

Negotiations for compensation would not have started without prior secret assurances, given by Konrad Adenauer to Nahum Goldman, that Germany was prepared to make a significant payment. A billion was a nice round minimum figure that Goldman liked, even though it was never quite certain whether he had in mind dollars or German marks that were worth only half as much. It did not take very long for West Germany to agree to pay Israel one and a half billion dollars—but they didn’t have the money. Instead of cash, payments would be spread out over 10 to 12 years and would be in the form of German goods. That ingenious arrangement would serve to prime the German economic pump while enabling Israel to use or sell the goods. It was an ironic twist of fate that railroad trains and taxicabs, as well as many other necessities for the first Jewish State, came from the country that sought to annihilate the Jews.

The parties further agreed that another half-billion dollars in goods would be supplied to the Claims Conference to carry out its relief work for Nazi victims outside of Israel. The most important part of the deal was the cash compensation that would be made directly to those individuals who had personally endured the brunt of Nazi persecution. Since there were no provisions in the normal German law, or the law of any other country, to deal with payments for such atrocities, special legislation would be required to achieve the stated goals. What was needed was a new Federal Indemnification Law that would pass muster by both the upper and lower houses of the German Bundestag, and be supported by the German public. The responsibility for negotiating the details of this legislation with the German government was assigned to a Claims Conference Legal Committee, of which I was a part. No one present had any experience in such matters and none of us had any idea how it would turn out.

The most serious losses and injuries never came within the purview of the new law. About six million Jews had been murdered in cold blood by Hitler’s eager executioners. Gypsies suffered a similar fate, as did many other opponents of the Hitler regime, including many Germans. No one on the Jewish side ever suggested that any payment should be requested, or accepted, for this senseless genocide. When this issue was first discussed at our preparatory meetings in London, it was recognized that we should not try to place any monetary value on a human life. It was just too painful to consider whether papa was more valuable than grandma or a baby sister. Most of us had tears in our eyes when we discussed it. Nor could we measure the pain of a survivor who saw his family being murdered, or the constant fear of camp inmates who had been threatened with imminent beatings and death. Such sufferings were beyond the reach of specification, comprehension, or compensation. The Claims Conference title referred only to “material claims.” We were trying to fit into a legal frame some measure of redress based on concepts developed among civilized people accustomed to civilized behavior. The crimes of the Holocaust could not be pressed into such a mold. Blinded by outrage and the desperate needs of impoverished survivors who cried out for justice, we embarked on a mission impossible.