The Ethical Case: Duplicitous Conduct by the U.S. Congress in the Matter of Reparations

Rather than demand that Poland pay reparations to foreign Jewish groups for heirless Polish-Jewish properties, which is a precedent absent in Western law, Congress should demand that Germany and Russia pay reparations to Poland for the extensive death and destruction the Germans and Soviets inflicted on the country and its people during World War II.

Graphic: Andrew Woźniewicz

The JUST Act (Justice for Uncompensated Survivors Today) requires the Department of State to submit an annual report to Congress that describes the extent to which “covered” countries have enacted “national laws and policies” to “return or restitute for assets wrongfully seized or transferred during the Holocaust era or period of Communist rule.” “Covered countries” are countries chosen by the Secretary of State from the 47 countries that attended the 2009 Holocaust Era Assets Conference in Terezin, Czech Republic. Mike Pompeo, U.S. Secretary of State at the time, chose Poland as a “covered country.” A written output of that conference was the Terezin Declaration on Holocaust Era Assets, which is non-binding and, because of its extralegal claims, was not endorsed by Poland. Also, because the JUST Act relies on a non-binding declaration that has no legal power, the U.S. Government has no legal mandate to enforce it.

By way of background, the JUST Act of 2017 was a Senate bill (S. 447) consisting of one-and-a-half pages that became law within 16 months. It was introduced in the Senate on 27 February 2017 and was passed on 12 December 2017. On 24 April 2018, the House of Representatives suspended the rules and passed the bill in about two hours by voice vote. President Trump signed S.447 on 9 May 2018. The bill’s sponsor was Senator Tammy Baldwin and there were 21 Senate co-sponsors. Disappointingly, all Senate and House members involved ignored the fact that under U.S. and Polish law, heirless properties revert to the state. The JUST Act is thus illegitimate because it requires Poland to pay for heirless Jewish properties. Moreover, it wrongly requires payments to be given to “needy Holocaust survivors”, used to “support Holocaust education”, and applied “for other purposes.”

From a legal standpoint, the purpose of the JUST Act is unlawful. Its objective is to compel Poland to pay foreign Jewish groups for heirless properties of deceased Polish Jews that were first expropriated, then despoiled, dismantled, or destroyed by Germany and the Soviet Union, and then nationalized by the postwar Communist government of Poland. It should be noted that the properties are heirless because of the mass murders committed by the Germans. An important legal analysis that invalidates the JUST Act is the 14 October 2015 Platta Memorandum of Law. Additionally, the Polonia Institute’s 21 August 2019 letter to the 88 members of Congress who signed a 5 August 2019 letter to Secretary of State Michael Pompeo also explains why the JUST Act is invalid. Both assessments explain that, as is common in Western democracies, heirless properties revert to the state, and that heirs of all ethnicities have always been able to submit claims through the courts. Also pointed out is the fact that the 16 July 1960 international indemnification agreement between Poland and the United States settled and discharged all claims by American citizens of Jewish origin and further stipulated that settlement of claims submitted after that date is the sole responsibility of the United States Government.

From an ethical standpoint, the purpose of the JUST Act is perverse. By requiring the State Department to annually report to Congress the actions “covered countries” have or have not taken to enact special laws that enable payment for heirless Jewish properties, the aim is to persistently shame Poland. The words of Israel Singer as reported by Reuters are instructive. As former chairman of the World Jewish Restitution Organization (WJRO) and former secretary general of the World Jewish Congress (WJC), Singer stated the following at an April 1996 WJC meeting: “More than three million Jews died in Poland and the Polish people are not going to be the heirs of the Polish Jews. We are never going to allow this.... They're gonna hear from us until Poland freezes over again. If Poland does not satisfy Jewish claims it will be publicly attacked and humiliated.” It is apparent that Poland is the principal target of the JUST Act because the largest portion of properties owned by deceased Jews is located in today’s Poland.

Contrast Congress’s conduct on reparations outlined above with the way it has addressed reparations for African Americans. A quick read of the history shows that Congress introduced two bills, neither of which was brought to the floor for a full vote. In January 1989, Representative John Conyers from Michigan first introduced H.R.40, “Commission to Study Reparation Proposals for African Americans Act”. He re-introduced H.R.40 in every Congress since 1989 and vowed to continue to do so until it became law. After Conyers retired in 2017, the bill was re-introduced by Representative Sheila Jackson Lee of Texas in January 2019. Three months later in April 2019, Senator Cory Booker of New Jersey introduced S.1083, which replicated the title and text of H.R.40. Both bills proposed establishing a commission “to study and consider a national apology and proposal for reparations for the institution of slavery, [and] its subsequent de jure and de facto racial and economic discrimination against African Americans…” The current status is that Jackson Lee re-introduced the bill on 4 January 2021, which was then referred to the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties on 1 March 2021. Recently, the Associated Press reported that President Biden supports studying reparations while Representative Jackson Lee testified at a House panel on H.R.40 and proposed the formation of a commission to recommend appropriate remedies. In addition, there are African American groups that continue to advocate and petition Congress for examining the case for reparations. Two prominent organizations are the NAACP Legal Defense Fund and the National Coalition of Blacks for Reparations in America, both of whom support the two bills. The latter organization accurately points out that “The bill [H.R.40] has been introduced for 30 years—yet for 30 years, it has languished.”.

Elemental to Congress’s unethical behavior is its duplicity. The definition of duplicity is: “deceitfulness in speech or conduct, as by speaking or acting in two different ways to different people concerning the same matter; double-dealing.” Congress has, on the one hand, continually refused to study the practicality of reparations for African Americans based on apparently valid grounds while, on the other hand, it demands that Poland pay reparations based on clearly invalid grounds. Note that Congress allowed H.R.40 to remain dormant for over three decades while it enacted the JUST Act in 16 months.

As a remedy for its double-dealing, Congress should take on a reparations case that is factually and morally legitimate, which is reparations owed to Poland by Germany and Russia for the extensive death and destruction Hitler and Stalin inflicted on Poland and its people during World War II. Although Germany has paid billions to Israel, Germany and Russia both have refused reparations to Poland. As outlined in the paragraphs that follow, reparations to Poland are clearly warranted.

In the first two years of the war, Poles were the primary target of a coordinated German and Soviet extermination process designed to annihilate them on both sides of the Ribbentrop-Molotov line. Poland's population losses were proportionately the greatest of any nation in the war. Of its 35 million people before the war, Poland lost 6.5 million, of which 90 percent were civilians of all ages. An estimated 664,000 were battlefield deaths, a figure that exceeds the combined losses of the United States and Great Britain in WWII. Of the 3.3 million Jews who lived in Poland before World War II, 3 million perished as did 2.7 million Poles. Up to 200,000 Polish children were kidnapped for Germanization under Himmler’s Lebensborn program and tens of thousands died. The Soviets deported 1.25 to 1.6 million Poles to Siberia and Kazakhstan between 1939-1941, where an estimated 80 percent died. Between 1945-1955, the Soviet-controlled Ministry of Public Security in Soviet-occupied Poland murdered tens of thousands of political, military, and intellectual leaders who were seen as a threat to the Communist regime. Poland’s physical infrastructure in World War II also suffered extensive destruction. Most major industrial and commercial structures were demolished and what remained was looted by the Red Army, which dismantled whole factories and shipped them to the Soviet Union. Most cities were largely destroyed, particularly Warsaw, and nearly all of the country’s artwork, cultural treasures, and old literary works were stolen or destroyed.

Often overlooked are Poland’s contributions to and sacrifices for the Allies. Breaking the Enigma was perhaps the greatest Polish contribution to the Allied victory, which is believed to have shortened the war and saved countless lives. Polish fighter pilots played a critical role in the 1940, three-month-long Battle of Britain, which was a major military campaign fought entirely over the skies of the United Kingdom and became a turning point in the war. There are also the less known but pivotal military victories of Polish military forces fighting under the Allies. General Władysław Anders and his Polish 2nd Corps at the Battle of Monte Cassino broke the Gustav Line and enabled the Allies to advance northward to Rome. There were also his victories at Ancona, Loreto, and Bologna. General Stanisław Maczek and his 1st Polish Armored Division closed the Falaise Gap by destroying 14 German divisions, which collapsed the German position in Normandy. Maczek went on to liberate the Belgian cities of Ypres, Oostnieuwkerke, Roeselare, Tielt, Ruislede, and Ghent. One of Maczek’s greatest victories was the liberation of Breda in the Netherlands, during which there were no losses of the town’s population. During the Normandy invasion, Polish naval ships provided vital artillery support as well as protection against expected Kriegsmarine counterattacks while Polish merchant ships transported Allied soldiers and armaments.

Also overlooked is the fact that the Poles never established a collaborationist government (as did France, Norway, Holland, Slovakia, Croatia, Hungary, Belgium, and Romania), never established paramilitary forces to round up and deport Jews to the death camps or kill them outright (as did Belgium, Holland, France, Norway, Slovakia, Croatia, Hungary, Bulgaria, and Romania), and never established SS units to fight under German command (as did Denmark, Norway, Belgium, Latvia, Hungary, Estonia, Italy, France, Holland, Albania, Ukraine, Romania, Bulgaria, Amenia, Georgia, and Croatia, which prolonged the war and Hitler’s racist killing campaign).

Another fact frequently forgotten is the extent of Polish efforts to rescue fugitive Jews in hiding who escaped from the German-controlled ghettos and camps. In occupied Poland, the Germans enforced a standing order that anyone aiding a Jew would be executed together with immediate family. Despite this death penalty, the largest number by far of any country honored as Righteous Among the Nations by Israel (over 7,000) are Poles, many of whom were killed for aiding Jews. While these are known to Israel’s Yad Vashem, thousands more are known only to God. Estimates of Poles who aided Jews range from 300,000 to 1 million and estimates of those killed for doing so approach 50,000. Also, two Polish institutions were critically instrumental in rescuing Jews. The first, Żegota, was the only government organization in the German-occupied countries established to rescue Jews. Estimates of Jews saved by Żegota range from 30,000 to 60, 000. The second was the Catholic Church, which rescued Jewish children on a massive scale by hiding them in convents, orphanages, and rectories. No German-occupied country had such an organizational infrastructure that aided tens of thousands of Jews despite the persistent threat of death.

Significant Polish efforts were also made to warn the West about the mass murder of Jews in occupied Poland. Witold Pilecki deliberately walked into a German round-up for Auschwitz prisoners and then sent reports to the Polish resistance headquarters in Warsaw. These comprised the first inclusive record that convinced the Allies the Germans were engaged in genocide on an unprecedented scale. Jan Karski was a secret courier who travelled between the Polish government-in-exile in London and the Polish Underground Government in occupied Poland. He was twice smuggled into the Warsaw Ghetto by Jewish underground leaders to observe the horrifying conditions. Karski carried out of Poland a microfilm with this information, and it became one of the earliest and most accurate accounts of the beginning of the Holocaust. He was also the first eyewitness to personally meet with FDR and British Foreign Secretary Anthony Eden and gave a detailed statement on what he had seen. On December 10, 1942, the Polish government-in-exile published a document titled The Mass Extermination of Jews in German Occupied Poland that was addressed to the Governments of the United Nations and was the first international publication of Hitler’s mass murders.

Source: Wikipedia

From this, it should be obvious that, rather than continue a deceitful campaign to shame Poland into paying reparations for heirless Jewish properties, Congress has the opportunity to confirm its ethical stature by pursuing a reparations case that is clearly warranted. As outlined above, reparations are undeniably owed to Poland by Germany and Russia for the extensive death and destruction the Germans and Soviets inflicted on Poland and its people during World War II.

The destruction of cultural property was one of the priority goals of the Nazis, it was supposed to break the cultural backbone of the Polish nation. It is estimated that Poland lost over 500,000 works of art during the war, and over 20 million valuable volumes.