Restitution: The Law and the Morality
The Unwritten Final Chapter

The law of compensation for damages to person and property is as old as the most ancient statute recorded on stone tablets.  It rests on the principles of accountability and restitution, on personal responsibility and on the ideal of restoring the status quo ante.  Individual and collective responsibility have been given eloquent expression in the Chumash , in the five books of Moses.  The idea of providing compensation to the victims of the Holocaust stems, therefore, from millennia-old legal traditions, both Jewish and non-Jewish. 

In practice, of course, there never can be any adequate payment; some losses are irreplaceable, beginning with life itself and severed limbs, but also treasured personal property, such as art and family photographs.  Broken health, psychological trauma, and the loss of time during the years of incarceration, none of these can be properly substituted and satisfactorily paid for.  And, for that matter, what is the value of an unborn baby and all its unrealized talents?  How much is a killed wife or mother worth?  What price tag do we set on lost education?  On the pain of medical experiments?  And on the agonies of specific tortures?  And what monetary value do we place on humiliation, on rape, on permanent nightmares?  Is this not an indecent exercise?  And yet some form of compensation had to be, if only to set the record straight that harm has been done.  Without it there could be no new beginning, no Tikun ha-Olam, no repairing of the world.

German restitution, at best, would be partial and imperfect in practice, comprehensible in theory as legally justified and, most of all, morally imperative as a symbolic show of recognition of the immense damage that had been criminally inflicted. Without it the closing chapter of the Holocaust would remain unwritten. 

So what should teachers of the Holocaust do with the problems and facts of restitution?  What should be told?  What needs to be discussed?  Which issues are primary if a choice must be made?

From a purely academic standpoint, there is a substantive legal history of restitution.  Between 1951 and 1991, there have been about a dozen contractual agreements signed by the then West and now unified Germany, committing it to pay for damages incurred during World War II to victims of Nazism, Jewish and non-Jewish.  Recipients have been overwhelmingly Jews; but they have also been German Catholics, Poles and Ukrainians. 

The sequence of laws pertaining to restitution is not difficult to reconstruct:

  1. September 27, 1951, Chancellor Konrad Adenauer called for restitution legislation.  This had been preceded by the August 22, 1949 law restoring the rights and privileges taken by Nazi legislation and the May 11, 1951, law reinstating retroactively members of the German civil service expelled by the Nazis after 1933.
  2. May 26, 1952, a provision of the "Treaty on Germany" committed the Federal Republic to pay compensation.
  3. September 10, 1952, an agreement was signed between the Federal Republic of Germany and the conference on Jewish Material Claims against Germany.  The agreement included payments to Israel. 
  4. October 1, 1953, the Federal Republic passed the "Federal Laws for Compensation of the Victims of National Socialist Persecution."
  5. July 19, 1957, the Law on Lost Property was passed. 
  6. The above law was substantially expanded twice, on June 29, 1956, and on September 14, 1956.
  7. September 18, 1990, article 2 of the Unification Treaty extended laws of restitution to the former East Germany.
  8. In October 1992, the above was clarified with the Claims Conference.
  9. May 1, 1992, the above agreements (No 8) were made into law, including a provision for pensions. 

These laws serve as a guide to the troubling questions associated with the policy of compensation.  As a result of these half-dozen major pieces of legislation and their amendments, a side industry made up of bureaucrats on behalf of the German government and lawyers representing the victims sprang up, the one to minimize payments, the others to maximize them.  The one alert to legal fraud, the other operating from a moral high ground;  the former more or less compelled by world opinion, the latter driven by the concern that funds would run dry and deadlines would be missed or the money would come too late to provide crucial assistance.  For over four decades, the administration of Holocaust compensation has been a tense personal struggle for tens of thousands forced to fill out forms and prove the legitimacy of claims by reconstructing painfully tragic memories.  It is a Holocaust chapter that, so far, has not been adequately researched, assessed, and integrated into the curriculum.

The amount of money and the number of beneficiaries are the raw data of the story.  Behind each applicant, as behind each law, is a convoluted political history that opens up a Pandora 's Box of issues: partisan and political; of institutional rivalries, German-Jewish suspicions, recriminations, of painful cooperation and even partial reconciliation, not to mention fraud, extortion, misappropriation and deception, generosity and gratitude.  The entire gamut of post-Auschwitz emotions and tensions, between Jews and Germans, between Israel and Germany, comes into the open.  It is quite literally a goldmine of opportunities to probe into the immediate legacy of the Holocaust. 

Directly connected to this topic is an injustice inside the compensation story: the absence of the Gypsies.  Despite numerous public protests and appeals, no German government has been willing to recognize the category of the Gypsy as a group victim targeted by the Nazis.  The reasons, both stated and unstated, are mixed, evasive, disingenuous, transparently clever, and outright prevaricating.  It remains an open chapter, all the more so since Jewish organizations have not been on the front lines of this struggle.

There are other disquieting issues.  Not all can be mentioned here; let a central one suffice.  In his eloquent September 27, 1951, speech announcing the principle of restitution Adenauer says: "The great majority of the German people did not participate in the crimes committed against the Jews... While the Nazis were in power, there were many among the German people who attempted to aid their Jewish fellow-citizen in spite of the personal danger involved..."  Adenauer was wrong on both counts and he knew it!  It was a political speech and he openly lied twice by denying two terrible truths about Nazi Germany.  In two short statements he absolved the German people of guilt (this in 1951, when the entire Nazi generation was alive) and he made heroes of the bulk of the German people when there were precious few Righteous Gentiles among them.

What is particularly distressing is that these passages of Adenauer's 1951 speech have been circulated far and wide.  They are quoted again and again.  And all German school children encounter them before graduating.  At best, Adenauer's words are irresponsible, if not cynical, a conscious whitewash of Germany's Holocaust past; at worst, it is one of the first broadsides of the deniers who now infect our society and disrupt learning.

In light of the wealth of issues embedded in the restitution question no teacher should bypass the phenomenon; it is far too important and endlessly interesting.  Perhaps a reader of The Forum is prepared to write its full history, one that began half a century ago and is still being acted out as aging victims seek compensation for their unjustified suffering.  At the very least, this final chapter of the history of the Holocaust needs to be integrated into every text and syllabus.  For just as the issue of adequate punishment deserves to be addressed so should the problems associated with the rectification of losses to which no meaningful price can be attached.  And yet the debt must somehow be paid.

Henry R. Huttenbach

A Footnote:
Nostra Culpa Sed Non Nostra Maxima Culpa: ADL Damage Control in l'Affaire Jeffrey

After having spearheaded the campaign to dishonor Professor Christina Jeffrey, the Anti-Defamation League's director Abraham Foxman steered an abrupt volte-face after he detected a sea change in public opinion against Jeffrey's disgraceful firing by Speaker of the House Newt Gingrich from the position of House historian, a firing spearheaded by the ADL.

Sensing powerful moves in her favor and against those who so ruthlessly attacked her unjustly and above all, in an ill-informed fashion, the ADL leadership launched a rapid campaign of damage control to save face. As reported by The Washington Post (September 6, 1995, A19) Foxman, over dinner, arranged "an exchange" of letters, the gist of which frees Jeffrey of the insidious charges of antisemitism by the ADL and allows the ADL to squirm out of its original untenable position as one of her chief accusers. Piously, Foxman, in one of his letters of August 22, 1995, has Jeffrey express "remorse," a loaded term she herself never used as she, correctly, apologized, in writing, for having originally expressed herself less than clearly. In her letter of August 8, Jeffrey had used the word "regret" not "remorse" as Foxman insinuates, a distortion that borders on the dishonest. Pompously, Foxman, posing as a merciful Grand Inquisitor, informs Jeffrey that "after examining the facts and circumstances of the controversy . . .  ADL is satisfied" that all charges and accusation against her are "entirely unfounded and unfair."

He conveniently overlooked that had he taken the trouble, as was his professional and moral responsibility, to examine the facts and circumstances in the first place prior to rendering stentorious verdicts and not after he and his organization had rushed to a lynch-like verdict, he would not have had to engage in this embarrassing act of self-deception. In short, the ADL should unequivocally have apologized to Jeffrey for violating her rights ( The Genocide Forum, I/9, May 1995). We can only hope that this past issue of TGF sent to all ADL chapters helped to set the distorted record straight.

However, the half-hearted Foxman pilgrimage to Marietta, Georgia, has only partially exculpated the ADL. It must yet admit to its maxima culpa and not rest self content with the forged expressions of "remorse" mendaciously put in the mouth of Professor Jeffrey, who remains not only innocent and needs to be fully vindicated, but deserves to have her enemies' iniquities properly identified and labelled.

Most disturbing is Foxman's sanctimonious post-mortem generosity. "If the Speaker now gives her a job," he pontificated, "we would say, 'God bless.'" Setting aside this abuse of the name of G-d, Foxman's gesture is that of the sentimentally repentant hangman after having sprung the trap. Having irrevocably helped to ruin Jeffrey's public career path if not her reputation, Foxman makes this absurd and patronizing statement, itself an insult.

To make matters worse, Foxman self-righteously offers a gift of blood money, promising Jeffrey ADL's financial support to mount a Holocaust Education conference at Kennesaw State College (where she remains a tenured associate professor), the same money that had professionally ruined her public career. On the program of this conference — for all to learn — ought to be an in-depth critique of this entire squalid incident. More than ever, it has become a first-rate case study for teachers seeking examples of violations of one lone scapegoated individual targeted by powerful lobbies, some of them unforgivably hysterical. If one can act in this manner against one stereotyped person, there is every reason to believe that those with the power to do so could direct their unchecked wrath against an entire stigmatized group. Is that not, after all, one of the modes of behavior considered a component part of pre-genocidal action?

Henry R. Huttenbach