Avraham Weber is an adjunct lecturer at Philipps–University Marburg and a visiting scholar at CUNY Brooklyn College. The post is dedicated to the 70th anniversary of the Luxembourg Agreement.
Legalization of the Term Genocide and Individual Claims of Holocaust Survivors
December 1946 brought the United Nations Assembly General to vote on a unanimous resolution, embedding for the first time in history the legal term genocide. Not long after, in December 1948, the UN would adopt the treaty for prevention of genocide. Further important developments in international humanitarian law soon followed, mainly in the form of the Universal Declaration of Human Rights, adopted a day later, also in December 1948. This wave of declarations, and the move to create an open, individual rights–based discussion within international law, paved the way for continued recognition of individuals as the subject of international law. This is demonstrated in the First Protocol of the Geneva IV Convention and, of course, later in the Rome Statute, establishing the International Criminal Court.
Recognition of the legal term genocide, as well as the creation of individual legal remedies for related crimes, can be traced, in particular, to Holocaust survivors and their attempts to receive some measure of justice, in particular compensation for violations of their fundamental rights. While their claims were directed toward the successor state of the Third Reich, the Federal Republic of Germany, the first steps to be undertaken were the assumption of responsibility by the federal government and the political process of gaining support for such personal compensation programs. Under then-existing international law, based mainly on the 1907 Hague Convention IV, individual rights were the basis of some reparations agreements between states, but individual claimants were not considered subjects of international law. Simply stated, the assumption was that individuals’ interests are represented and reflected in the end form of a reparation agreement between two sovereign states.
Given international pressure by Jewish organizations led by the World Jewish Congress and the Conference on Jewish Material Claims Against Germany, and a detailed claim submitted by the State of Israel to the Allies, the German federal government was aware of the international political implications of individual claims of Holocaust survivors. The government was also aware of the need for young post-WWII Germany to act expeditiously in order to promote not only reparation agreements, as occurred post WWI, but a holistic new and broad legal approach that would demonstrate to the community of nations Germany’s recognition of its responsibility and willingness to fulfil its political obligations toward survivors.
Adoption of the Luxemburg Agreement
As early as 1943, the Allies had already discussed and agreed on steps to be taken in a post–Third Reich world, relative to the restoration of plunder taken by the Nazis. In 1947, the US Office of Military Government set forth the first restitution legal mechanisms allowing individuals to make rights claims and receive restitution.
In this context, German Chancellor Konrad Adenaur openly addressed, in a governmental declaration before the German Bundestag, the concerns of the international community, Jewish organizations, and Holocaust survivors. On 27 September 1951, he declared that
in the name of the German people unthinkable crimes have been committed, and therefore it is the obligation of the German people to make things right again, all in the scope of federal German post-war capacity.
The road for negotiations between the sides was opened, and a year later, on 10 December 1952, the Luxembourg Agreement between the Federal Republic of Germany, the State of Israel, and the Jewish Claims Conference, an umbrella organization representing the world’s Jewry, was signed.
Implementation of the Luxemburg Agreement into the German Legal System: Two Approaches
This agreement established the political legal obligation of Germany’s federal government in creating a new legal framework for individual compensation claims under German administrative law. The Bundesentschädigungsgesetz (Federal Compensation Law, better known as the BEG) was enacted, and thus began the long road to compensation for deprivation of fundamental freedoms and compensation for incarceration in ghettos, labor camps, and concentration camps.
This new law dealt both with personal injuries inflicted by Nazi persecution and with personal property lost—real estate (in rem), financial rights such as bank accounts, insurance, and even looted art works. Sadly, however, goodwill expressed by the German federal government in the Luxemburg Agreement did not materialize fully into a well-established legal framework. Individual applications were administered by German clerks, often with a lack of understanding of the procedural and technical complications created by the fact that, during the Nazi era, many claimants had lost most of the proofs to support their claims. Consequently, Holocaust survivors who had been stripped by the Third Reich of all their basic freedoms faced extreme difficulties proving their claims, and many claims were denied on purely technical grounds.
In December 1969, the Bundesentschädigungsschlußgesetz (Federal Compensation Ending Law, better known as BEGSchluß) came into force. This law ended thousands of civil litigations before German courts and paved the way for a paradigm shift by the federal government and the establishment to a modern, less complicated framework for these arrangements. Article V BEG Schluß envisioned the establishment of a fund set forth to pay survivors without unnecessary administrative complications.
Since that time, many new agreements regarding compensation to Holocaust survivors have been negotiated, mainly after the reunification of Germany and the fall of the Iron Curtain. As a result, several legal mechanisms were established, including payments for East European labor slaves through the creation of a public foundation—Remembrance, Past and Future (EVZ Foundation). In addition, a special payments program was established for those who were in ghettos, concentration camps, and labor camps but were not compensated by the federal government. Under this program, such victims were to be compensated under Article II of the “Reunification Agreement” between the federal government and the Jewish Claims Conference. Additional legislation, such as the Ghetto Pension Law (ZRBG) of 2002, has been enacted, and thus over 70 years, most compensation categories of Nazi victims have been covered.
Looking back over the road of 70 years of German individual compensation, one can observe that the BEG law created years of litigation and complications, with a large number of claims rejected by German authorities mainly due to a lack of supporting legal definitions and guidelines that should have fit the legislation to the aggravating reality of Holocaust. Those succeeding in their claims, however, received relatively high rates of compensation. The modern alternative of a fund structure, based in the BEG Schluß law, allowed for a simplified mechanism of claiming, while allocating a more symbolic amount of payment per claim. This allowed the federal government to cover thousands of claims in a relatively short period of time. The downside of this approach is the lack of full access to the judiciary and certain limitations imposed on the right to appeal against the government’s decisions, as these claims have been handled under German federal administrative law, not tort law.
Legislative developments, however, did not happen on their own. Legal claims that Holocaust victims brought before courts encouraged and fostered the political process of the German government’s taking responsibility for Nazi crimes and developing legal solutions for providing compensations. Sometimes this pressure came from the German public, while in the late 1990s changes were forced by a wave of Class A lawsuits in the United States. Nevertheless, over the last 70 years, an ongoing dialog between the German federal government and legal representatives of Holocaust survivors took place.
Interestingly, other countries adopted some of the above-mentioned solutions, while dealing with their own WWII pro-Nazi regimes (Romania, Hungry, and others). Their legislation follows the logic of the German federal legislation. Compensation legal frameworks have been established to individually compensate those whose rights under international humanitarian law were not defended. Whenever states were blamed for this lack of protection, their response has been to establish such individual compensation programs.
Finally, these programs, both in Germany and in other countries, serve as a means of carrying out restorative justice and facilitating the victim-perpetrator dialogue. They have also become a symbolic recognition of the state’s gross violations of human rights and a means to facilitate intergenerational dialogue that allows the individual and the state to rethink the past. Not all wrongdoings can be undone—no compensation can cover the true loss caused by the Holocaust or any other genocide—but a nation’s assumption of responsibility starts a chain reaction resulting in legal steps that address wrongdoings.