Recent German Claims Against Poland
Krzysztof Rak and Mariusz Muszyński
Poland is probably the only country in which large fractions of the national elites permit
Given the fact that in 1945 the entire territory of Poland was occupied by the Soviets, the only sensible policy regarding restitution demands is for the German government to step in and make them an internal German problem.
The second argument in favor of doing nothing about such German demands is that any Polish attempt to close the issue of Polish-German war damages once and for all would legitimize German demands that have no legal value at present. To this we say that such claims should not be directed at the Polish state, period. If the claims are indeed of no consequence, the German government would not have argued that it cannot dismiss them because in such a case the expellees would have made claims against the German government itself. It is incomprehensible why certain parts of the Polish political elite accept this argument of the German government. Do those who accept it prefer that the claims be directed at Poland rather than Germany? Apparently the Poles are considered incredibly naive by the German government if it continues to maintain that the Prussian Trust’s claims have no legal value while at the same time accepting international norms concerning the property of private persons, norms that will be tested in the Strasbourg court as a result of the Prussian Trust’s actions. One can, of course, take the position that such claims are not justified. However, once legal procedures are initiated against Poland, the decision will not be in the hands of the respective governments but in the hands of an international court. Furthermore, it should be remembered that with regard to “expulsions and expropriations,” the German legal doctrine accepts no statute of limitations. In practice, this means that the German side could wait for generations for a favorable evolution of the political situation, or for an international law that would open the door to the possibility of pursuing such claims against a weaker neighbor.
It could be argued that such an evolution has already begun. The doctrine of the rights of individuals has trumped national sovereignty on a number of occasions. The argument about restitution of German property is another step in this process. The evolution of the legal system in Europe has bestowed genuine rights on the individual. It is now possible to sue a sovereign country before an international tribunal. The Prussian Trust knows well that by ratifying the European Convention of Human Rights, Poland accepted that standard and the jurisdiction of the Strasbourg Tribunal.
It should also be remembered that, in this case, the argument that laws cannot be introduced retroactively may not work. The Strasbourg Tribunal operates according to the rule of “continuous consequences” (naruszenie ciągłe): if an act deemed illegal took place before the country ratified the Convention on Human Rights and the consequences of that act are still in operation today, the tribunal may intervene. This happened in 1996 when the state of Turkey lost the case against a Cypriot Greek even though the property dispute took place before Turkey ratified the convention. It is significant that the Prussian Trust refers to that particular case (Loizidou vs. Turkey) in its actions against Poland. A German proverb says: “In the court of law and at sea only God decides.” In contrast, in Poland such demands have been perceived through the lens of the law of absolute primacy of the state over the citizen, which prevailed in Soviet-occupied Poland for two generations.
Few people in Poland or elsewhere know that in Germany there exists a vast literature justifying German property claims in territories that had been granted to Poland through international agreements after the Second World War (the same agreements deprived Poland of eastern territories from which hundreds of thousands of Poles were expelled without any restitution of property whatsoever). In present-day Germany there is hardly a single international law specialist that does not have in his curriculum vitae at least one article dedicated to the postwar fate of the expellees. The conclusions of such articles are generally anti-Polish. The vocabulary used in German public life-the key concepts of “expulsion” (Vertreibung) and “dispossession” (Enteignung)-contain legally detrimental connotations. Poles and others have also forgotten that one of the most respected authorities in international law, Professor Alfred Verdross, introduced (in collaboration with Professor Bruno Simma, now a judge in the International Tribunal in the Hague) into international law the institution of territorial supervision. This annulled the finality of Polish rights regarding post-German territories given to Poland after the Second World War while at the same time cutting off eastern territories from the Polish state, thus initiating the painful and costly (to Poles) relocation of the Polish population from present-day Lithuania, Belarus, and Ukraine to western territories, from which Germans were relocated to Germany.
The third argument minimizing the claims of the Prussian Trust has to do with the allegedly radically changed nature of German patriotism. The argument claims that the German national consciousness has been radically changed, and therefore a danger of Germans engaging in any form of aggression against their eastern neighbor is thus simply moot. It is true that Germany went though a period of soul-searching after the Second World War, especially regarding the Jews and the Holocaust. However, such a soul-searching has never taken place regarding the Catholic Poles. It also appears that not only ordinary Germans but also German historians harbor an idealized picture of their actions in Poland in 1939-45, and the catastrophic destruction of Polish lives and property in the second world war. What is more, for a quarter-century now the historical debate in Germany (Historikerstret) has involved a number of serious historians who have posited that the crimes Germans committed in the Second World War were not exceptional, given that the twentieth century was a century of genocides such as that of the Armenians, the Ukrainians, and so on. If so, then the German nation is no more responsible for the history of that century than any other nation. In this context it can hardly be surprising that some segment of the expellees group accuses the victims of being the executioners, and is close to accusing Poles of genocide of the Germans before an international tribunal. If such people as Rudi Pawelka [the founder of the Prussian Trust], Steinbach, and Fromme are representative of German public opinion at least in part, then the concerns expressed in this article are far from being groundless. Finally, some Polish specialists in German affairs reach for geopolitical arguments and maintain that arguing with the Germans about the Prussian Trust destroys the chances of a successful Polish presence in European politics. They maintain that these arguments are moot, and that they have to do with historical interpretations rather than with contemporary politics. However, the postulate of “choosing the future” while abstracting from the past is impossible to put to practice. A collective brainwashing that would lead to historical amnesia, even if it occurred with full consent of the Poles, cannot be accomplished. All previous attempts to amputate memory have failed, not only in Poland but everywhere else. The most recent attempt, that of the Soviets, ended in a spectacular failure. We therefore maintain that an attempt to excise the memory of past events would have negative results for European identity.
The process of European integration is not an abstract construct, but is related to the future vitality and viability of the continent. Its roots go back to the problem Europe faced between 1871 and 1945: how to arrange the continent in such a way as to accommodate Germany in Europe. Germany is stronger than other European countries, but it is too weak to become an international superpower. President Francois Mitterrand’s policy regarding German reunification exemplified the dilemma facing Germany’s neighbors. Germany’s strength naturally pushes it toward attempts at domination, but these attempts ended with German defeat in the two world wars. Thus European integration was conceived as a means to enable Germany to peacefully coexist with other European nations and to rein in its dominating tendencies. A fundamental condition of such a solution was the Germans’ assumption of historical guilt, owing to which Germany assumed such a nobly responsible role concerning the rest of Europe in the second part of the twentieth century. It was this double burden the Germans carried-an admission of guilt and the weight of leadership-that is a major reason for the successes of European integration so far. Today we observe a reversal of this historical policy, and attempts to relativize German guilt on the one hand, and a general European disinterest in long-term consequences of political passivity on the other. It is not an accident that the Germany of Gerhard Schröder, Erika Steinbach, and Rudi Pawelka backed off from the process of deepening European integration.
The arguments raised by some Poles and others concerning the issue of German demands thus amount to saying that it is imprudent of Poles to display politically aggressive behavior toward the Germans. Such a stance shows full disregard for facts: it is not Poles but Germans who are asking for reparations, while common sense tells us that the situation ought to be reversed. In 1945 Poland was nominally one of the victorious members of the anti-Nazi coalition, but in practice it lost the war because it was occupied by the USSR. Poles got no restitution from the Germans for the unspeakable losses of life and property. The argument that the so-called “western” (post-German) territories allotted to Poland by the Great Powers constituted such restitution is flawed. Before the Poles assumed jurisdiction over these territories, the Red Army plundered everything that was worth plundering, dispatching entire factories to the USSR by train and truck and destroying such cities as Danzig/Gdańsk. The Polish victims of Nazi terror received no financial reparations. The minuscule payments of 1991-2006 cannot be treated as reparations: even the German side admitted that they were given de gratia, as a kind of charity donation to the destitute. The government of Soviet-occupied Poland extracted 100 million DM from the pockets of the “western revanchists”; these monies then disappeared, allegedly into the state treasury, some of it into the pockets of the apparatchiks; they have never been properly accounted for. In the 1990s the post-Round Table Polish governments took the line of least resistance and did not raise the issue of reparations. It is thus justifiable to say that Poles and the descendants of Polish victims of the Nazis never received any reparations whatsoever.
The history of Polish-German relations during the last half-century is the history of one-sided Polish relinquishments of the right to demand reparations. In 1953 Bolesław Bierut, president of Soviet-occupied Poland, renounced any war reparation claims against DDR [East Germany]. Even though the documentation is missing, it has been assumed that in 1970 the government of Soviet-controlled Poland confirmed this renunciation in a treaty that normalized Polish-German relations. In 1991 Prime Minister Krzysztof Bielecki’s government renounced support for any individual claims by non-Jewish Polish victims of the Nazis. In 1994 Prime Minister Marek Belka confirmed this stance. Thus the Polish side had long ago renounced all claims to the restitution of property and compensation for life and hardship incurred during the Second World War. Yet today, some members of the Polish political elites accept German claims to property restitution from Poland! Moreover, these politicians accuse of radicalism all those who try to point out these facts.Professor Alfons Klafkowski, who specializes in Polish-German relations between 1945-89, has estimated that Polish claims against Germans concerning Polish property lost or destroyed amounted to half a trillion dollars (in 1980 dollars). He suggested raising this issue with the government of Germany. What happened instead was a decision by the German authorities to extend pitifully small alms to a few thousand survivors who experienced health-destroying slave labor in Germany during the war, or otherwise were mistreated, imprisoned, or tortured by the German Nazis.
In view of the above, the accusations of radicalism that are sometimes extended toward Prime Minister Jarosław Kaczyński by those who oppose progress in Poland are absurd. On many occasions, the Polish prime minister has proposed the signing of a Polish-German treaty that irrevocably and finally denounces all claims by either side concerning losses in the Second World War (see his interview in this issue of Sarmatian Review, or the October 2006 article in the German Bild). In Germany such a proposal should be considered minimalist, and should be welcome. Kaczyński took a bold step renouncing mutual claims once and for all. Will the German side respond?
Over the last fifteen years, the consecutive governments of Poland acted as if the former communists could become model Europeans in the nick of time, and the Polish foreign policy was often conducted in defiance of the Polish national interest. Claims of the importance of national interest were ridiculed as backward and reactionary. The government of Prime Minister Kaczyński is trying to reverse this trend. There are serious issues in Polish-German relations that need discussing: the issue of the Prussian Trust, the issue of the version of history actively promoted in Germany today, the issue of the Szczecin Bay rights, the issue of the status of the Polish language in Germany and of the Polish minority in Germany. We will be able to solve these issues if the Germans begin to treat Poland as a partner, and not as a country that can be disingenuously excluded from the process of mutual recognition.
Translated by the Sarmatian Review staff.
1. Piotr Jędroszczyk, “Wysiedleni žądają zwrotu mienia w Polsce,” Rzeczpospolita, 19 December 2006.
2. Website of the Polish Ministry of Foreign Affairs, <www.mfa.gov.pl/Statement,of,the,Minister,of,the,Foreign,Affairs,8688.html>, as of 30 January 2007.
3. Deputy Hans-Joachim Otto’s query (FDP) published in Bundestag Drucksache 16/2584, questions 21 and 22: “What specific step has the federal government taken to redress the injustices of the expulsion, as promised in the coalition agreement between CDU, CSU, and SPD signed 11 November 2005, p. 114?” Polish Foreign Ministry site, <www.mfa.gov.pl/apps/?command=biuletyn/ pokaz&lang_id=pl&page=9480&bulletin_id=7-212k>, as of 30 January 2007.
4. An interview with CDU MP J. K. Fromme, Rzeczpospolita, 12 December 2006.
5. Erika Steinbach, “Das Gewissen is gegen Vertreibungen sensibiliziert,” Süddeutsche Zeitung, 26 August 1999; Deutsche Radio, <http://www.dradio.de/dlf/sendungen/interview_dlf/539126/>; <www.linke-fachschaft.de/sputnik/sputnik0000000011/rassenwahn.htm>.
6. D. Blumenwitz, Das Offenhalten der Vermoegensfragen in deutsch-polnischen Beziehungen (Bonn, 1992); “Konwencja o nie stosowaniu przedawnienia wobec zbrodni wojennych i zbrodni przeciwko ludzkosci,” Dziennik Ustaw, 26 November 1968 (Dz. U. 70.26.208).
7. A. Verdross, B. Simma, R. Geiger, Territoriale Souveränität und Gebietshoheit. Zur völkerrechtlichen Lage der Oder-Neisse Gebiete (Bonn, 1980).
8. In Die Geschichte der Oder-Neisse-Linie (München: Olzog, 2006), author Michael A. Hartenstein claims that the reason for changing the Polish-German borders in 1945 was Polish nationalism.
9. Alfons Klafkowski, The Problems of War Compensation Connected With World War II (Poznań, 1991); n.a., “Sprawozdanie Biura Odszkodowań Wojennych - Straty wojenne Polski,” January 1947.
Back to the April 2007 Issue
The Sarmatian Review
Last updated 4/3/07