Reparations and Restitution

Ambassador Stuart E. Eizenstat

January 10, 2020

I am privileged Rabbi Shmuel Katzman of the Rabbinaat Den Haag asked me to deliver these remarks in The Hague on International Holocaust Remembrance Day. I am speaking from the U.S. Holocaust Memorial Museum, which I helped create President Jimmy Carter I speak to you at a troubling time of a rising tide of hatred against minorities and anti-Semitism, and appalling declines in knowledge about the Holocaust and its contemporary lessons, particularly by young people,n more and more of the 350,000 survivors, eyewitnesses, are leaving us. But it is also a time when there are genocides and potential genocides around the world if we are to take seriously the “Never Again” we must apply the lessons of the Holocaust to contemporary 21 century challenges.

There was nothing inevitable about the Holocaust, nor is there today anything inevitable about the genocides in the world today. The Shoah is a tragic example of what happens when people are ill-informed, indifferent, and inactive in the face of evil, when neighbor turned on neighbor because of their religion, and when the western world refused to act because of prevailing anti-Semitism. Jews were expendable then, just as other religious minorities are in 21st century genocides, although none of the magnitude of the Holocaust.

Hitler’s initial goal was to make Germany Judenrein, free of Jews. Hitler proceeded carefully waiting to judge German public and world reaction, and seeing none he took one step after another: first passing racial lawsisolating Jews; barring them from professions; destroying synagogues and businesses in Kristallnacht; expropriating their property and possession then deporting them to concentration camps;, and finally murdering six million Jews, including 1.5 Million children, the German people acquiesced or even supported seeing their neighbors dispossessed deported. And the world failed to act, including the United States. Hitler got a clear signal, and said so publicly, that the world did not care about protecting the Jews, and he had a free hand to commit the worst genocide in world history.

• At the Evian Conference in July, 1938, called by President Roosevelt . To deal with the plight of German Jewish refugees, he sent low level representatives and failed to take the lead in lifting rigid immigration quotas as an example to the rest of the world, , while the State Department did all it could to restrict immigration.

• The SS St. Louis in May 1939, carrying over 900 German Jews sat for days outside Miami and was not allowed to land;

• No sanctions were imposed on Germany before the U.S. finally entered the war.

• President Roosevelt had substantial evidence about the growing dimensions of the Holocaust but failed to act, including a personal visit by the courageous Polish diplomat Jan Karski, who gave him and Justice Frankfurter his personal accounts of the Warsaw Ghetto because of the high levels of anti-Semitism in America at the time .FDR did not want to make WWII seem like a war for the Jews.

• Arthur Hays Sulzberger, publisher of the New York Times, gave his editors instructions to bury stories of the Holocaust, concerned his paper would be viewed as a Jewish newspaper.

• Nor did the American Jewish leadership do all they should have to pressure FDR to act more urgently on behalf of Europe’s beleaguered Jews, likewise afraid of raising anti-Semitic sentiments

In the immediate post-war days Nazi atrocities were revealed with liberation of death camps, and filmed at the insistence of Supreme Allied Commander Dwight Eisenhower. While Americans were shocked by newsreels of the death camps, the staggering dimensions of the Shoah were not understood. And the Holocaust was quickly given a backseat, as the focus of the U.S. And the west was the Cold War against the Soviet Union.

• There was little demand for justice beyond the Nuremberg trials of only a tiny fraction of the Nazi perpetrators.

• Jewish survivors were often poorly treated:

  • Jews trying to reclaim their confiscated homes in Poland and Lithuania were killed, and post-war property restitution laws in countries like France, Austria and the Netherlands were unsatisfactory.

  • They lived in squalid Displaced Persons (DP) camps after the war. General George Patton, whose forces liberated concentration camps ordered guards to monitor survivors as if they inmates in prison. President Truman’s representative on refugees Earl Harrison wrote him a scathing report after visiting the DP camps: “as matter now stand, we appear to the be treating the Jews as the Nazis treated them, except we do not exterminate them. They are in concentration camps in large numbers under our military guard instead of SS troops. One is left to wonder whether the Germans seeing this are not supposing that we are following are at least condoning Nazi policy”.

  • Great Britain kept 52,000 survivors trying to reach Palestine, in squalid camps in Cyprus, some up to five years.

• Survivors rarely told their stories because they wanted to shield their children from the horrors through which they went, and needed to focus on building a new life in the U.S., Israel, or Europe.

• Authors like Elie Wiesel had difficulty finding a publisher for his book “Night”. In 1962 Rabbi Irving Greenberg was denied the opportunity to teach a course on the Holocaust at Yeshiva University because it was not considered a proper topic for academic study.

But the monstrous dimensions of the Holocaust could not be hidden, although action to deal with its origins and consequences was slow and painful. In 1968, Arthur Morse published “While Six Million Died” to shockingly describe what FDR knew about the genocide of the Jews and failed to act. He was a colleague on the Hubert Humphrey presidential campaign against Richard Nixon and h revelations changed my life and committee me on a course to pursue justice for Holocaust survivor and memory for those who perished.

A whole genre of books followed by historians and wider audiences were introduced to the Holocaust in 1978 by NBC’s widely watched mini-series;; Meryl Streep film, “Sophie’s Choice”; Claude Lanzmann’s classic 1985 nine hour documentary “Shoah”; and Steven Spielberg’s Academy Award winning 1993 “Schindler’s List”. At last the Holocaust seemed firmly embedded in the public consciousness. But it is now slipping over the decades.

But beyond books and movies, the Holocaust created for the first time in the history of warfare a legal process by which a country which had abused and murdered civilians, both its own citizens and those of the countries it occupied, agreed to compensate survivors. In September 1951 the first post-war German Chancellor Konrad Adenauer accepted responsibility in his words for the “unspeakable crimes that have been committed in the name of the German people.

One month after Adenauer’s speech Dr. Nahum Goldmann, president of the World Jewish Congress convened a meeting in New York City of 23 major Jewish organizations, and speaking for the collective Jewish world, created the Conference on Jewish Material Claims Against Germany--the Claims Conference. Beginning in The Hague in March, 1952 negotiations commenced between Germany, led by Chancellor Adenauer, and the young State of Israel, led by Prime Minister David Ben-Gurion, and parallel negotiations between the German government and the Claims Conference.

In a historic agreement in Luxembourg on September 10, 1952, the Claims Conference and the West German federal government signed two protocols. One called for German laws that would compensate Nazi victims directly the first post-war international agreement by the new German state was with Israel and a Jewish NGO and became embedded in domestic German law. The second protocol provided the Claims Conference with 450 million DM for the relief, rehabilitation and resettlement of Jewish victims of the Holocaust.

These negotiations were so controversial that they took place under the cloak of secrecy. Menachem Begin and his Herut party led violent demonstrations outside the Knesset with a banner that read: “Our honor cannot be sold for money…our blood shall not be atoned by goods. We shall wipe out the disgrace.” After three days of emotional debate, the vote was very close: only 61 of the 120 members voted in favor. Letter bombs were sent to the delegations.

Nor was it easy on the German side. The major reason the agreement passed was the unswerving resolve of Chancellor Adenauer. His own CDU finance minister Schaeffer was opposed and some of his party voted against it in the Bundestag, while others abstained. It passed because every member of the Social Democrats supported it.

The first major German Holocaust compensation program under the German Federal Indemnification Laws, the BEG provided life-time pensions to a subset of survivors It is critical to understand that today, in 2020, there are around 350,000 Holocaust survivor around the world, of whom at least 50% are poor or near poor: 95% of those in the former Soviet Union in Central and Eastern Europe; 35%-40% in Israel; and around 30% in the United States. Germany has paid over $80 billion since the 1950s. Almost all of the major programs the Claims Conference has negotiated with Germany go only to survivors in economic need. More than half of the 350,000 survivors receive some form of payment from the German government.

The history of Claims Conference negotiations with Germany over the decades has been to expand the number of survivors eligible for payment, as we tracked Germany’s post-war history-- a history of which post-war Germany can be proud. In 1980, the original role of the Claims Conference expanded, with the creation of the Hardship Fund to provide direct one-time payments to Nazi victims who had received no prior compensation, and primarily benefit those who had emigrated from the Soviet Union in the 1970s. Over the past 40 years, approximately 525,000 Jewish Nazi victims benefited from Hardship Fund payments, of whom remain alive. Many are from the former Soviet Union and fled almost certain murder by the Nazi Einsatzgruppen that followed the Wehrmacht in its eastern advancements. I coined the term “double victims” of Nazism and Communism and they are often the poorest of Jewish Nazi victims.

Beginning in 2009, I became the chief negotiator for the Claims Conference along with Holocaust survivor Roman Kent, and a negotiating team of survivors from the UK, Poland, Israel and the U.S., brilliantly managed by Greg Schneider, executive vice president , counsel Karen Heilig , and Rudy Mahlo in the Berlin office. Since then, we have obtained over $9 billion of additional benefits, especially in home care and increased pensions. In our September 2020 negotiations we secured over 650 million euros for a supplemental Hardship Fund payment to the poorest survivors.

The next major development followed the collapse of the Berlin Wall and the reunification of the two Germanys. The U.S. Government supported the Claims Conference demand for the compensation of Holocaust survivors. , This was incorporated into Article 2 of the implementation agreement to the German Reunification Treaty of 1990, in which the German government was prepared to enter into agreements with the Claims Conference to provide payments to survivors who had thus far received no or only minimal compensation. After 16 months of difficult negotiations the Article 2 Fund was established in 1992 providing a lifetime pension to those under certain income limits who were in camps, ghettos or hiding for a prescribed period of time. Since 2009 we have negotiated liberalized criteria for the length of time in ghettos, or living in hiding and covering open ghettos in several countries, including in North Africa, to cover an additional 18,000 survivors.

In 1998 a similar pension program, the CEEF, was established in the former communist East Bloc countries. Overall 135,000 survivors have been approved for pensions under these programs, and in 2020 over 50,000 survivors still receive Article 2 and CEEF pensions.

The fall of the Berlin Wall and reunification of Germany in 1990 led to another novel application of international law. The Claims Conference ensured through German law that former owners and heirs of property located in the former East Germany lost during the Nazi era were finally given the same opportunity for restitution as those who had property in the former West Germany.

An even more novel agreement covered unclaimed or heirless Jewish property where whole families were wiped out. Germany agreed that the Claims Conference would be designated as a “successor organization”. Rather than the property reverting to the German government the Claims Conference became the owner on behalf of Jewish victims of the Shoah. This resulted in the recovery and sale of $2 billion for the Claims Conference, the vast majority of which has been used since 1995 for welfare programs to assist needy survivors worldwide.

We are constantly seeking to enlarge the compensation programs: in 2014 the Child Survivor Fund was created and has paid over 80,000 child survivors a one-time payment of 2500 euros. In 2018, children who fled Germany and Austria on the Kindertransport were also entitled to a payment from this fund. We have expanded the number of additional groups to the Hardship Fund.

I a second unique feature in international law occurred during the Clinton administration, under my leadership: payment by private companies for the harm they caused to civilians during World War II. The Holocaust was not only the greatest genocide in history; it was the greatest theft in history, only a small fraction of which has been recovered.

After the collapse of Communism Edgar Bronfman, president of the World Jewish Congress and the World Jewish Restitution Organization, met with President Bill Clinton in the White House, to urge that a special envoy be appointed to encourage the newly democratic countries in Central and East Europe to return communal property--synagogues, schools, community centers, even cemeteries-- to the shattered Jewish communities seeking to rebuilt their communal life after the twin tragedies of the Holocaust and Communism. I became that special envoy, taking on a dual role while I was U.S. Ambassador to the European Union in Brussels . I traveled widely throughout the length and breadth of the regionto put the moral weight of the U.S. Government behind this effort.

In the midst of this work, I read a 1994 article in the Wall Street Journal about dormant Swiss bank accounts, established by Jews seeking to put their assets away from the grasp of the Nazis in the most secure banks in neutral Switzerland, but never returned to their rightful owners, and taken into the profits of the banks. I got permission from the State Department to pursue this injustice. When I met in Basel, Switzerland with the Swiss Bankers Association I showed them the Wall Street Journal article and asked for their response. Yes, they said there were accounts found by having an ombudsman review the of all Swiss banks from 1933 to 1945, and they were going to pay the owners $30 million to take into account interest over the decades.

A May 2, 1996 memorandum of understanding signed between Edgar Bronfman the Jewish Agency of Israel and the Swiss banks created an independent committee of eminent persons, chaired by former chairman of the Federal Reserve Bank Paul Volcker, to conduct an independent audit of the wartime Swiss bank accounts. At the suggestion of the World Jewish Congress, Volcker retained an expert, Helen Junz, to conduct a study of prewar Jewish wealth in Europe, which she estimated at $12.9 Billion. After three years and moe than $200 million in audit fees paid by the Swiss banks, the Volcker committee issue its report, finding that some 54,0000 accounts had a “probable or possible” The Swiss government remained uninvolved, putting the full burden on the private banks. I had led a 1997 interagency study showing that the central bank had helped finance the Nazi war effort by trading Swiss francs in return for gold they knew the Nazis had stolen from the coffers of the central banks of the countries they overran The combined pressure Edgar Bronfman, sensational Senate hearings chaired by Senator Al D’Amato of New York, class action lawsuits against the Swiss banks, my mediation on behalf of President Clinton,, and the critical intervention of U.S. District Court Judge Edward Korman, the Swiss banks agreed to a staggering settlement of $1.25 Billion, with a worldwide claims process.

The Swiss bank settlement led to class action suits against German slave and forced labor companies who employed Jewish and non-Jewish workers, often working the Jewish workers to death, to which I mediated a settlement of $5 billion (10 billion DM)i n July, 2000, which included $350 million for unpaid insurance policies it was the first time Germany paid compensation to non-Jews, who actually got the majority of the funds against Austrian companies with similar practices, along with $210 million to pay for the confiscation of Jewish private property; and French banks I for hiding Jewish accounts.

Another novelty of international law was my negotiation in the Clinton administration with 42 countries in 1998 of the Washington Principles on Nazi-confiscated art, establishing principles for the identification, publication, claims and return of some of the 600,000 artworks the Nazis stole. The Washington Principles were amplified and broadened by the 47 nation Terezin Declaration which I negotiated in 2009 in the Obama-Biden administration. Although not legally binding under international law, their moral force has had a profound impact on the art world. Five countries (Netherlands, Germany, Austria, France, and the UK) have established claims commissions to adjudicate claims against public museums which hold these looted artworks.

In 2018, the U.S. Congress passed the JUST Act, calling on the State Department to report on the implementation of the Terezin Declaration by its signatories, including the Netherlands, which it did in August, 2020. Only a few weeks ago, a Dutch committee established by the Minister of Education, Science and Culture issued a stinging report critical of the process and policies employed by the Dutch Art Restitution Commission, perhaps leading to the resignation of its chairman.

Thousands of paintings have been restituted or compensated due to the Washington Principles and Terezin Declaration. The two major art auction houses, Christie’s and Sotheby’s have created full time staffs to assure that they do not sell or auction Nazi-looted art work. Christie’s has resolved over one hundred claims.

Monetary compensation or restitution are not the only ways to deal with violations of human rights. Another effective way is the creation of truth and reconciliation commissions, such as the one in South Africa created by Nelson Mandela. These can avoid divisive retribution and lead to healing by giving victims a forum to describe their mistreatment. This was never done in post-war Germany. I am proud of the role we played in the Clinton administration in shining a light on the actions of the Swiss and other neutral countries World War II by two major reports in 1997 and 1998, stimulating dozens of countries to review their conduct during the Holocaust. The best was the Swiss government’s appointment of Professor Jean-Francois Bergier helped the Swiss people come to a better understanding of their country’s ambiguous role during World War II.

Holocaust education is now more critical than ever.

During the initial post-war years, the Claims Conference was fundamental in providing critical funding for Yad Vashem, YIVO, Memorial de la Shoah and the Wiener Library in London. The Claims Conference devoted a small part of the proceeds or Holocaust education, research and documentation. At its peak a few years ago, the Claims Conference the s largest funder of Holocaust, up to $18 million per year. But as the fund has dwindled, only a small fraction is available at the very time Holocaust awareness has dramatically dropped.

In a major recent survey by the Claims Conference, 48% of American millennials and Generation Z could not name a single one of the more than 40,000 concentration camps or ghettos established during World War II; 56% were unable to identify Auschwitz; 63% did not know that six million Jews were killed. Remarkably, 11% believed Jews caused the Holocaust. Roughly half have seen Holocaust denial or distortion posted on their social media platforms. However, the bright spot is that 64% felt that Holocaust education should be compulsory in their schools and 80% believed it was important to learn about the Holocaust.

In January 2000, as Deputy Secretary of the Treasury, I worked with the Prime Minister of Sweden, Goran Persson, to establish the Holocaust Education Task Force to promote Holocaust education, then with only a handful of countries. This has now become the International Holocaust Remembrance Alliance, with over 30 countries. However, in the U.S. Only about 12 states have any form of Holocaust education.

There is progress. This year the U.S. Congress passed the Never Again Education Act to provide $10 million to promote Holocaust education through grants provided by the U.S. Holocaust Memorial Museum. In our September 2020 negotiations with the German government they will provide the Claims Conference with 9 million euros in 2020, with an increase of 3 million euros each year, so there will be 18 million euros by 2023.

Has the Holocaust taught the world anything? Are we any better for the lessons it should have given us?

At one level an argument can be made that we are repeating the mistakes of the Holocaust. After al, : Pol Pot and his Khmer Rouge killed two million Cambodians without any intervention by the world community in the 1960s. The massacres in Rwanda went largely unchallenged during the Clinton administration. Eight thousand : Bosnian Muslim boys and men were massacred in Srebrenica, the worst act of genocide on European soil since the Shoah, and ethnic Albanians were murdered in Kosovo at the hands of the Serbs. The first genocide of the 21st century occurred in Darfur, Sudan by ethnic Arab militias supported by the Sudanese president. The U.S. left its allies the Kurds alone at the hands of Syria’s Bashar al-Assad. Seven hundred thousand Rohingya minority in Buddhist Myanmar (Burma)were forced to flee to Bangladesh three million Muslim Uyghurs in China have been abducted and imprisoned for communist “re-education”. The Nuer in South Sudan and Christians and Muslims in the Central African Republic are treated brutally; and the list goes on, without effective international intervention.

But let me suggest that the world is slowly developing a set of international instruments that have the possibility of incorporating the lessons of the Holocaust, if combined with the will of the United States and our European allies.

Let’s look at how far we have come. Prior to World War II, individuals had no rights under international law, and depended solely on how their nation, even Germany under Hitler, mistreated its citizens. No other state had a legal right to protest against the treatment of another state’s abuse of its citizens within their territory, nor did individuals have a global forum to present their cases of mistreatment.

This is not to say that nations were helpless to combat Hitler’s mass murder of Jews, had they wished to do so. There is no question the Holocaust and the brutality of World War II war has been a dramatic catalyst in improving the rights of individuals, who now have internationally guaranteed rights, and tribunals to assert them against states that violate them. But we must always be cognizant that these rights are fragile and depend heavily for their on other nation, who act largely for their own interests.

The Charter of the United Nations did not create an enforceable set of rights, given the strong opposition of the Soviet Union, and the reservations of major western allies, including the U.S. In significant part because of racial segregation embedded in the laws of southern states. In order to get the U.S. Senate to ratify the UN Charter and avoid a repeat of the disastrous defeat of the Covenant of the League of Nations negotiated by President Woodrow Wilson after World War I, the UN Charter had only vague language about promoting respect for ” human rights and fundamental freedom for all without distinction as to race, sex, language or religion”.

The Universal Declaration of Human Rights in 1948 adopted a non-binding UN resolution which still remains a landmark. Since then there have been numerous international agreements such as the Genocide Convention; the international covenants on human rights; the International Convention on the Elimination of all Forms of Racial Discrimination;, the Convention on the Elimination of all Forms of Discrimination against Women,; the Convention on the Rights of the Child, the Convention Against Torture.

In the early 1950s, the Council of Europe adopted the European Convention of Human Rights as a direct result of the Holocaust, which established the first organization allowing individuals the ability to sue states which violate their rights: the European Court of Human Rights, which remains active to this day. Their judgments are largely honored. One expert, Thomas Buergenthal has called the European Court “the most effective international system for the protection of human rights in existence today”.

The International Court of Justice in The Hague was created in 1945 to be the principal civil court of the UN, and hear disputes between countries. This year, in a case brought by Gambia against Myanmar, the court issued a provisional decision aimed at protecting the Rohingya from further persecution under the Convention on the Prevention of Genocide.

Moreover, international criminal law and institutions to enforce. This began with the Nuremberg Tribunal to try Nazi war criminals. In 1993 the UN Security Council established the International Criminal Tribunal for the former Yugoslavia and several of the worst Serbian human rights offenders were tried and convicted, including Serb General Ratko Mladic. In 1994, the International Criminal Court for Rwanda was established following the Rwandan genocide. And in 2002 the International Criminal Court came into being, to which now over 120 nations (not including the U.S.). Are parties. Radovan Karadzic, president of Republic of Serbia, was convicted by the court, and 45 leaders, including Libya’s Muammar Gaddafi have been indicted by the court.

There are other institutions today that did not exist during the Holocaust. Human rights NGOs, like Human Rights Watch, Doctors Without Borders, HIAS, and Amnesty International highlight acts of genocide and war crimes. US Holocaust Memorial Museum’s Center for the Prevention of Genocide, to which I belong, thoroughly researches and works with members of to highlight areas were genocide is occurring or where it is at risk the Auschwitz Institute for the Prevention of Genocide has one of the largest education and training programs around the world to sensitive people to the dangers of genocide and mass atrocities through the lessons of the Holocaust. I chair the Defiant Requiem Foundation, which, with the vision of Murry Sidlin, has performed over 50 concert-dramas in the U.S., Europe and Israel, and increasingly in colleges and universities using student musicians and singers, to dramatize the power of cultural resistance through the arts and music in giving people hope in hopeless situations. This happened in the Theresienstadt concentration camp through a Jewish prisoner chorus created by a young Czech composer, Rafael Schechter, performing perform Verdi’s Requiem on 16 occasions before he was sent to Auschwitz, thousands of lectures, a children’s opera, and more than a dozen original compositions. We were scheduled to perform our landmark concert “Defiant Requiem: Verdi at Terezin” in Amsterdam in May of this year, which would have been broadcast nationwide on Dutch television. Because of COVID-19, this has been moved to May, 2021.

The internet and digital communications and aggressive journalists bring war crimes and acts of genocide directly into our homes to stir our conscious, something not possible during the Holocaust.

For all its limitations the United Nations operating under a UN Security Council resolution since 1999, has peacekeeping missions to protect civilians providing some measure of protection Jews never had during the Holocaust.

The limitations of international law are all too painful. Nation states are the key drivers of the treatment of their citizens. International human rights are regularly violated by brutal autocrats around the world, with little ability of citizens to mobilize international law to protect themselves, unless it touches on the interests of western nation states. The U.S. and NATO intervened in Bosnia and then in Kosovo because the west in the end could not tolerate another genocide on its soil after the Holocaust. But many other massacres and genocides around the world do not capture the attention of the western nations that could make a difference, because they do not engage their strategic interests.

Critical factor is the willingness of the President of the United States (along with the Congress) to make human rights a key part of foreign policy. I am proud that Jimmy Carter was the first to do so, applying it to Latin American dictators reducing their arms shipments and using his bully-pulpit to call for freedom and democracy in our hemisphere. Even while negotiating a nuclear arms agreement with the Soviet Union, President Carter championed the rights of Soviet Jews, leading to the doubling of Soviet Jewish emigration. Other presidents, from Nixon to Trump, give little attention to how nations treat their citizens and focus on their external conduct;

I believe President-elect Biden will put human rights back into a central role in his foreign policy. Of course, all presidents have to carefully balance America’s interests against human rights concerns, as in dealing with China. But making human rights at least a significant part of foreign policy can help advance its cause and protect vulnerable people from genocide. I believe that the growing body of international human rights and genocide lawand international courts to enforce them, with the ability of the media to focus a global spotlight on atrocities and the internet to transmit violations around the world, has created, however imperfect, a reputational damage to serial human rights violati and at least some effort to mobilize global action. The Holocaust has been a stimulant in beginning to build a world in which human rights violations and genocide gain greater opprobrium.

The most meaningful way to commemorate International Holocaust Remembrance Day is to pledge ourselves and to urge our governments to remember the lessons of the Holocaust and to take effective action against hate, anti-Semitism, human rights violations and genocide, where it occurs and against whomever it is perpetrated. Thank you.