REMARKS
AMBASSADOR STUART E. EIZENSTAT
SPECIAL ADVISER TO THE SECRETARY OF STATE
FOR HOLOCAUST ISSUES
TO THE OPENING OF THE IMMOVEABLE PROPERTY REVIEW CONFERENCE
PRAGUE, CZECH REPUBLIC
26 NOVEMBER 2012
First Deputy Prime Minister and Foreign Minister Schwarzenberg, First Deputy Foreign Minister Schneider, Ambassadors, honored delegates and representatives of non-governmental organizations, ladies and gentlemen, it is both a privilege and a pleasure to offer a keynote address as we open what has come to be called the Immoveable Property Review Conference. I wish in particular to extend my thanks and that of my government to the government of the Czech Republic, and especially to its Ministry of Foreign Affairs, which has once again helped make such a conference possible. This is the third such conference in four years for which they have played host; that is a heavy burden for any country to carry. I think I can speak for all of us here when I say that we are in your debt, not to mention in awe of the gracious and efficient way you have organized and conducted each of these conferences.
In addition, we all congratulate the Czech Republic on its courageous recent decision to enact a law, despite considerable political opposition, returning nationalized property to the religious communities, Christian and Jewish, from which it was taken. I hope it will be effective January 1, 2013 as envisaged by the law.
I also wish to commend ESLI’s Director, Dr. Jaroslav Sonka, and his team, for all their hard work to make this conference a success. Similar thanks are owed to Jakob Klepal and his Forum 2000 colleagues, without whom none of this conference would have been possible. Our great U.S. Ambassador Norm Eisen and his talented staff, especially Jana Kernerova, have been instrumental in making this conference a reality. Liz Nakian from the State Department’s Office of the Special Envoy for Holocaust Issues under the direction of Special Envoy Douglas Davidson has been a driving force behind this conference along with Susan Sandler.
Two and a half years ago, many of us gathered in this same historic city to conclude negotiations on a document called Guidelines and Best Practices for the Restitution and Compensation of Immovable (Real) Property Confiscated or Otherwise Wrongfully Seized by the Nazis, Fascists and Their Collaborators during the Holocaust (Shoah) Era between 1933-1945, Including the Period of World War II. On the 9th of June 2010, we concluded discussions and negotiations that had lasted almost exactly a year, following the June 2009 Prague Conference on Holocaust-Era Assets. On that day, more than 40 countries expressed their support for these Guidelines and Best Practices, which were called for by the Terezin Declaration issued at the conclusion of the June 2009 Prague Conference. Their endorsement of this document brought us a significant step closer to meeting the goal that we all share—that of providing a measure of justice to victims and survivors of the Holocaust alike as well as to their families and heirs. Now, just as these Guidelines and Best Practices called for, we have re-united for the next two days to review the progress we have made in adhering to and applying them, and identifying the gaps where further efforts are necessary to further the goals of the Guidelines and Best Practices. The 2009 Prague Conference and the 2010 conference recognized what we should remember for this conference. Holocaust was not only the most tragic genocide in history, it also was the greatest theft in history.
I recognize that acting on these Guidelines and Best Practices is not easy. To return property or to compensate for its loss requires governments to balance the interests of those from whom the property was taken with those of the people currently using those properties. But this can be done without in any way displacing good faith occupants of these properties. That you are willing to balance this in such a way as to do justice to those from whom the property was originally confiscated is what makes the Guidelines and Best Practices, and this review conference necessary and important.
Compliance with these Guidelines and Best Practices benefits not only victims of Nazi persecution, but also those countries who comply with them. The Guidelines and Best Practices are fundamentally about human rights, the rule of law, and the sanctity of private property, all of which are essential components of a truly democratic society.
Let me give you an example. It concerns a country that was at first unwilling to subscribe to these Guidelines and Best Practices, but recently has changed its approach and done the right thing. In the summer of 2011 the head of the European Union’s delegation to Serbia laid out a compelling case for why property restitution was important to Serbia’s candidacy for membership in the European Union. In so doing, he placed this issue in a context larger than just the Holocaust, but his points were nevertheless perfectly applicable to our discussions here over the next few days. Among other things, he said this:
Property restitution needs to be seen in the wider issue of property rights. The Treaty establishing the then European Economic Community states that the Treaty 'shall in no way prejudice the rules in the Member States governing the system of property ownership'. Therefore, stricto sensu the issue of property restitution falls outside the scope of the EU.
The situation was quite different in the former communist countries which applied for EU membership in the 90s. In this context, while remaining a national competence, the issue of property restitution has become a relevant issue with regard to the criteria for EU membership.
From the political criteria point of view, the EU considers property rights as part of the socio-economic rights. The EU does not have a model of property restitution to propose or to impose as property restitution is not a formal obligation under the acquis. But we expect a country aspiring to join the EU to pay due attention to this issue as we expect the values of the Union such as the 'respect for human rights' to be duly taken into account also in matters which belong to the sphere of national competence.
Addressing property restitution is important for the respect of the rule of law. In other words, if the legal system of a country does not create the conditions for settling conflicting claims over property rights, then it is the legal certainty that is put in jeopardy.
From the economic criteria point of view, the legal certainty over property ownership is key to the sound development of a market economy. This is important for both domestic economic operators and foreign investors. Therefore, clarity about the restitution of property may influence very positively the overall business environment in a country. A reliable legal framework on property rights will help the development of a dynamic real estate market.
This is not the first time the European Union has spoken about the importance of its Member States and those seeking accession to put in place the very types of laws and processes for property restitution called for by the Guidelines and Best Practices. In 1995, the European Parliament passed a resolution (B4 – 1493/95) entitled “Resolution on the Return of Plundered Property to Jewish Communities”.
The European Parliament’s resolution recalled that Article 1 of the first additional protocol to the European Convention in 1952 stipulated that “every natural or legal person is entitled to the peaceful enjoyment of his possessions”; noted that “twofold plundering of the property of Jewish communities, first under the regime of the Nazis and their collaborators, and then under the Communist regimes”, and that under Communist regimes other individual of “various origins, communities and religions and many organizations, notably Christian churches, were deprived of their property.”
Importantly, the European Parliament resolution (Section G 3-4) specifically called on “all countries of Central and Eastern Europe which have not already done so to adopt appropriate legislation regarding the return of plundered property so that the property of Jewish communities may be returned to Jewish institutions, in accordance with the principles of justice and morality”, and “Asks also that all countries of Central and Eastern Europe which have not already done so adopt appropriate legislation for the return of other property plundered by the Communists or the Nazis and their accomplices to the their rightful owners”
This illustrates why the Guidelines and Best Practices are so important, useful and beneficial. They provide specific and detailed guidance to states on how best to return property stolen during the Holocaust - and often nationalized during the Communist era - to its rightful owners or compensate them for its loss. In addition to the moral value of righting an historic wrong, this also provides the practical benefit of visibly strengthening respect for property rights and the rule of law. They serve as a guidepost to how fully a democratic state has developed. And they can be done in a fully affordable way, without excessive burden to states.
These Guidelines and Best Practices cover three categories of property. Tomorrow we shall tackle them in turn. But permit me to set the stage for tomorrow’s discussions with a brief overview of the issues we will face.
The first category consists of communal property owned by religious or communal organizations. This category includes buildings or land used for religious or cultural purposes. These include churches, synagogues, cemeteries, or other immovable sites used by religious communities, as well as buildings and land used for communal purposes, such as schools, community centers, hospitals, and youth camps. It can sometimes also include property owned by religious or communal organizations and used to generate income. It is these communal properties the new Czech law covers.
The second category is private property, owned by private individuals who themselves or through their families or legal entities owned homes, buildings, businesses, apartments or land, or had other legal property rights.
For these two categories of communal and private property, the best solution is, of course, to return the property in question to its rightful owners. This is especially the case where the property is held by the state. But where that is not possible without disturbing the current owner’s property rights, then compensation programs should be used instead. No one currently using private property in good faith should fear they will be displaced. Compensation programs in lieu of restitution, however, can only be a valid option if such programs provide genuinely fair compensation. But realistically, fair compensation does not necessitate payment of full, current fair market value. States can consider payments of a percentage of fair market value, can cap the overall amount to the be paid, as Austria did in its 2001 agreement with the United States, and can make payments over a period of years. States can also consider substituting property of equal value. Nor should privatization programs compromise the rights of a rightful owner.
The third type of property is heirless property. This is property wrongfully taken by the Nazis, Fascists and their collaborators whose owners died without leaving a living inheritor. This category requires a different approach from the first two.
Traditionally, in most nations, the government takes possession of an heirless estate. In well-functioning market economies that respect property rights and that have not experienced communist nationalizations, the government will then conduct an auction of the property and the revenue collected will be placed in the government’s treasury.
But, if we consider the circumstances under which Jewish property became heirless during the Holocaust, this is not just or fair. Consider, too, as the Terezin Declaration did, that there are today fewer than 500,000 Holocaust survivors left alive in the world and that roughly half of them live in dire poverty. That percentage approaches 85% of survivors in some countries of Central and Eastern Europe. It does not seem right that those who suffered so grievously in the prime of their lives should have to spend their last remaining years on earth in such conditions.
There is something that the nations represented here can do about it. They can encourage their governments to assist needy Holocaust survivors by using some of the proceeds from the sale or rental or imputed value of heirless property to assist these survivors in their time of want, to support the remains of the once-thriving Jewish communities in their countries, and to promote Holocaust education and remembrance so that others, too, will learn the lessons of a past that must not be repeated.
Austria has set an example in this regard. The Czech Republic has shown great leadership. In the year 2000, it passed a landmark legislation which provided funds for the social and medical needs of Czech Holocaust survivors, partial compensation for private restitution claims without regard to citizenship and programs of commemoration and memory. These were based upon communal properties that could not be returned. Serbia has recently promised to follow suit as well. I very much hope that it will.
Obviously there is work still to be done in all three areas. This work is made more difficult, as we shall discuss on the final day of our conference here, by current economic difficulties, public indifference or outright opposition, and by the near-absence of visible involvement by influential international organizations—with the exception of the European Parliament Resolution that I cited and the EU’s role in encouraging Serbia to enact restitution and compensation
I am certain that with good will, we can find solutions to these problems, but we must bear in mind that we do not have the luxury of time. We are also past the point where states can offer easy reasons for inaction, such as the implications of compensation programs for their sovereign debt, the potential negative reaction of their voting publics, or the lack of an EU acquis to compel such actions. Affordable ways exist to reduce any burden. And there are examples where states have overcome these obstacles and have done the right thing. Here I would like to single out Lithuania’s government for praise. Last year Lithuania enacted important communal property compensation legislation, providing compensation to the Jewish community in lieu of restitution, paid out in an affordable way over a number of years. Lithuania has also shown a commendable devotion to Holocaust education, to building a memorial site to commemorate the horrible massacre outside Vilnius in the forests of Panerai, and to correcting the historical record by re-establishing its Historical Commission to Investigate the Crimes of the Nazis and the Soviets.
I do not want to leave you with the misimpression that, except for Lithuania, the situation is entirely grim. We should not lose sight of the progress made since my association with this issue began back in 1994, when I was the U.S. Ambassador to the European Union. At the request of the late Richard Holbrooke, who was then the Assistant Secretary of State for European Affairs, I began to meet with senior officials in Central and Eastern Europe to encourage the countries that were thankfully no longer trapped behind the Iron Curtain to return communal property, -which I have noted, includes churches, synagogues , community centers, income-producing buildings, and even cemeteries—confiscated during the Holocaust to their re-emerging religious communities, Jewish and Christian alike. Here, by the way, I should like to take the opportunity to praise the Czech Republic for its recent passage of a law returning religious properties.
In my work during the Clinton Administration, I quickly discovered that restitution laws and the system of land holding differed from country to country. I further learned that some countries had good restitution laws on their books but were implementing them only partially, or in a half-hearted or at best, uneven manner; that others were still preparing such laws; and that still others had no such laws and no apparent intention of preparing or enacting them.
While some countries were doing a better job of dealing with the issue than others, not one at that time had established a comprehensive, systematic way of doing so—of advertising a claims process, encouraging claimants to file, accepting and processing claims, adjudicating applications in a non-discriminatory and transparent manner, and making just awards of property or compensation. The lone exception to this sad fact was a country that had been partly behind the Iron Curtain. I am referring, of course, to the then newly re-unified Federal Republic of Germany, which had swiftly developed an administrative process for restituting or compensating for property located in the former German Democratic Republic.
The situation in Central and Eastern Europe is much different today. Austria, for example, negotiated an agreement in 2001 with the U.S. government, establishing a process that can be a model for handling private property. An administrative claims process was established to review claims, with a maximum payment permitted each individual claim, and an overall, affordable cap on total payments that could be made. The Austrian legislation properly establishes the standard that there should be non-discrimination in claims, namely that they should be available equally to those no longer in the country and who are not citizens, as to those who are citizens and residents of the country.
Even so, for other countries we must admit that implementation of existing legislation remains uneven. Lack of transparency, processing delays, difficulty in obtaining basic documentation, and inconsistent information about the application process have hindered or harmed property restitution in too many countries. In some instances, too, basic legislation is still lacking. In others, arduous and expensive court battles are necessary because no alternate administrative procedures have ever been put in place. It is difficult to find a country in this part of Europe with an unblemished record.
However, as I have emphasized, this is not just an exercise to help victims of the Holocaust or the Communist era. It has a direct benefit to states as well. To begin with, there are clearly moral arguments for returning what was wrongfully taken, even if the taking was not done by governments currently in power. These human rights arguments were among the reasons the Czech government and the U.S. government were able to convene some 47 nations for the June 2009 Prague Conference on Holocaust Era Assets in the first place.
There are also very practical reasons why governments should want to restitute or compensate. These Guidelines and Best Practices can help remove clouds over the title to property, facilitate the transfer of property rights, and encourage more job-creating foreign direct investment.
Central and Eastern Europe contains a huge number, probably in the millions, of private and communal properties with clouded or “cloudable” property titles to them. In some of these countries this prevents homebuyers and others from getting title insurance. In most it also makes mortgages more expensive than they should be. Real estate markets in many Central and Eastern European countries will never reach their full potential as engines of growth until Holocaust era and Communist era confiscations are addressed and resolved either through restitution or through reasonable, affordable compensation programs.
What is more, only governments can undertake to create national programs to address the moral and the administrative dimensions of this issue. Only governments can create truly unclouded and “uncloudable” property titles. Only governments can tend to the human factor in all this—the interests of claimants, whether survivors of the Holocaust or victims of Communists nationalizations, who have been deprived of something that was once rightfully theirs. If they are no longer alive, which is predominantly the case when it comes to Holocaust survivors, then their heirs have every right to expect that they will be included in national claims processes for confiscated real estate. Property, after all, is or should be heritable.
The list of problem areas in individual countries is too long for me to go into in detail this evening. We will have time to do that in the coming days. But before concluding I want to leave you with a few thoughts about the importance of declarative statements like the European Parliament Resolution, the Terezin Declaration, and the Guidelines and Best Practices, even if they are not legally binding.
It is worth noting that just before we agreed on these 2010 Guidelines and Best Practices, the Parliamentary Assembly of the Council of Europe endorsed the idea that refugees and internally displaced persons have a right to restitution of housing and land, and that if restitution is not possible, replacement property or compensation should also be included in refugees’ property rights. This is very helpful, since most of the countries present this evening, the United States and some of its American neighbors excepted, are member states of the Council. Even before this, in August 2005, the United Nations had endorsed Principles on Housing and Property Restitution for Refugees and Displaced Persons. Named after Sergio Pinheiro, the Special Rapporteur who had fostered them, these Pinheiro Principles provided the first global, consolidated standard on the land, property, and housing rights of the displaced. Pinheiro Principle Number Two will sound familiar to you: “All refugees and displaced persons have the right to have restored to them any housing, land or property of which they were arbitrarily or unlawfully deprived.”
Despite these declarations by the Council of Europe and the United Nations, the Terezin Declaration recognized that sixty-five years after the end of World War II the restoration of real and movable property to its rightful owners remains a work in progress. It therefore urged participating states to implement national programs to address unresolved immovable property issues. It is in fact this declaration that was the genesis of these Guidelines and Best Practices. We encourage all countries to agree to the Guidelines and Best Practices developed from the Terezin Declaration.
Especially to those states that proved reluctant or resistant, I want to stress that the Guidelines and Best Practices are voluntary and not legally-binding. They recognize that states have different legal systems and that these states must act according to their own laws. Thus to argue that national laws prevent action to abide by them is not logical, fair or compelling. The very existence of such laws is explicitly taken into account in the document, and when they conflict, for example on heirless property, national laws prevail.
But even if not all countries present in Prague in 2009 wanted to voice their support for these Guidelines and Best Practices twelve months later in the same city, this by no means diminishes their value. Quite the contrary. As we found with the Washington Conference Principles on Nazi Confiscated Art of 1998, which were likewise non-binding, they nevertheless profoundly changed the art world. These Guidelines and Best Practices create a moral impetus to bring a measure of justice to an area of that has seen precious little of it.
We are not starting with a blank slate in encouraging implementation of these morally important Guidelines and Best Practices, either. Countries like Germany and Austria offer positive examples on private property restitution and compensation that others would do well to follow. On communal property, Lithuania and the Czech Republic has exerted similar leadership, and Poland has also made an important beginning on restituting communal property, by returning hundreds of pieces of religious communal property and land, with many more now being processed through a commission the Polish government has agreed to continue.
There is another reason why these Guidelines and Best Practices have a potential to make a significant contribution to Holocaust and World War II justice. For the first time since the end of World War II in 1945, again thanks to the commitment and the leadership of the Czech government and the Czech people, an institution has been created that can serve as an instrument to promote and foster observance of these Guidelines and Best Practices. I am referring, of course, to our host for this conference: the European Shoah Legacy Institute. It exists, I should add, not just to foster discussions like this on immoveable property but also to promote developments in all the areas covered by the Prague Conference and the Terezin Declaration.
I want to underscore two final points. One is that private property justice can be done in an affordable way, with overall and individual capped amounts, consistent with your budget capabilities. The last is that as with the Washington Principles on Nazi-Confiscated Art, our goal with these Guidelines and Best Practices, and this review conference, is to encourage the states present here this evening to develop fair, affordable, and transparent administrative processes to deal with claims to immovable property. This is best done through administrative processes and programs that individual nations themselves design to suit their own particular needs and circumstances.
We also recognize that no agreement is perfect and that the success of this one depends heavily on the willingness of states to follow these Guidelines and Best Practices with the guiding light of a strong moral compass.
In this spirit and on behalf of Secretary of State Hillary Rodham Clinton, who has long been deeply interested in justice for Holocaust survivors and other victims of Nazi and Fascist persecution, and also of the United States of America, I am proud to open this review conference of these Guidelines and Best Practices for restitution and compensation of immovable property. I thank you all for your participation, and wish you all every success as this conference takes place and in the future.
Thank you.