Predictably, the reaction to this unexpected development was a mixture of anger and consternation.
“Poland is telling many elderly pre-war landowners, including Holocaust survivors, that they have no foreseeable hope of even a small measure of justice for the assets that were seized from them,” said World Jewish Congress President Ronald S. Lauder.
Ambassador Stuart E. Eizenstat, special advisor to Secretary of State Hillary Clinton on Holocaust-era issues, expressed “disappointment,” and hoped that the Polish government would “continue to do what it’s pledged to do so many times, and that is move forward in a way that is financially affordable, is fair to the Polish people and to those Polish citizens and those of Polish ancestry who lost property in both the Communist and Nazi eras.”
In response, Foreign Minister Sikorski declared on Polish Radio that “the United States gave up the right to represent its citizens in such cases” under a 1960 treaty, “and took the burden upon itself to pay out restitution money worth millions, which Poland had already paid to the United States,” adding gratuitously that “if the United States would have wanted to help Polish Jews, a good moment for that would have been 1943-44, when the majority of them were still alive.”
Sikorski is wrong on the law. Under the U.S.-Polish agreement in question, Poland undertook to pay $40,000,000 to the U.S. government over 20 years to compensate “nationals of the United States . . . against the Government of Poland on account of the nationalization or taking by Poland of property and of rights and interests in and with respect to property.”
This agreement was never intended to cover the claims of Jewish Holocaust survivors who came to the United States long after their property was first seized by the Nazis and then nationalized by the Communist regime, but was meant to provide compensation to individuals who were American nationals at the time their property was confiscated.
As the U.S. Foreign Claims Settlement Commission concluded in 1962 when it rejected a non-Holocaust related claim brought under the 1960 agreement: “The principle of international law regarding the nationality of a claimant seeking espousal of one State of his claim against another State has been expressed variously as requiring that the aggrieved person be a national of the espousing State at the time the loss accrued, or the injury was suffered or the claim accrued or arose, or that the claim possess the nationality of the espousing nation in point of origin or inception.”
Simply put, the 1960 agreement does not apply to Holocaust survivors with claims regarding Polish properties since they were not nationals of the United States “at the time the loss accrued, or the injury was suffered or the claim accrued or arose.”
Sikorski could also benefit from a history lesson. On a trip to Israel earlier this year, he said that “The Holocaust that took place on our soil was conducted against our will by someone else.”
On July 10, 1941, Poles in the Eastern Polish town of Jedwabne, rounded up and massacred more than 300 of their Jewish neighbors (historian Jan T. Gross puts the number of victims at around 1,600). Led by their mayor, these presumably churchgoing Christians forced Jewish men, women and children into a barn and burned them alive.
On July 4, 1946, a mob in the Polish city of Kielce killed 42 Jews who had returned there after the Holocaust. In January of 1996, Polish Foreign Minister Dariusz Rosati acknowledged in a letter to the World Jewish Congress that what he called “the infamous Kielce pogrom” had been “an act of Polish anti-Semitism.”
Between the Jedwabne and Kielce pogroms, countless Poles profiteered from the Germans’ “Final Solution of the Jewish Question.” Poles who hid Jews at the risk of their own lives were vastly outnumbered by those who denounced Jews to the Nazis, plundered their property, and shamelessly moved into the homes of Jewish families that had been deported to death and concentration camps. In addition, the Polish people daily continue to reap benefits from properties worth millions upon millions of dollars that Jews had owned in Poland before 1939.
All this hardly makes Poland a nation of innocent bystanders.
While other formerly Communist Eastern and Central European countries have taken substantive even if not fully satisfactory measures to settle accounts with their former citizens, Poland has dragged its feet for more than 20 years, with successive presidents, prime ministers and other officials promising to enact legislation that never materialized.
The Polish authorities must be made to understand that perpetuating what amounts to grand theft and embezzlement as national policy has consequences. Until Poland enacts a meaningful law that addresses the property claims of Holocaust victims and their heirs, the Jewish community generally, and survivors and their families in particular, should stop injecting tourist and other dollars into the Polish economy. Moral suasion clearly hasn’t worked. Perhaps treating Poland with the same consideration it accords to Jews and others who were robbed of their property will be more effective.
(Menachem Z. Rosensaft, an adjunct professor of law at Cornell Law School, distinguished visiting lecturer at the Syracuse University College of Law, and vice president of the American Gathering of Jewish Holocaust Survivors and Their Descendants, can be reached at email@example.com.)