Restitution as a founding act

Dan Diner on the commemoration
“70 Years of the Reparations Agreement”

Dan Diner, Chair of the Alfred Landecker Foundation and its Governing Council, spoke on the 70th anniversary of the Reparations Agreement at the commemorative event "Weiter Verantwortung tragen - Verantwortung weitertragen" at the Jewish Museum, Berlin.

It was 8 a.m. on September 10th 1952, when the West German, Israeli and Jewish delegations walked without a word through opposite doors that opened ritually into the salle des mariages of the Luxembourg city palace and, just as wordlessly, took their seats at the wide ceremonial table. There they silently signed the so-called “Reparations" agreement negotiated in the Dutch Wassenaar near The Hague.

Such a suspiciously early hour for a diplomatic act reveals the broader, highly complex political environment of the Luxembourg Agreement. The reason why the delegations had to meet in the city palace at 8 a.m. was because another extremely important meeting had also been scheduled at 9 a.m., just one hour later and at exactly the same place: the first meeting of the Special Council of Ministers of the European Coal and Steel Community (ECSC) – the Montanunion, the first institution of the European project of integration. The founding fathers of Europe were present: Robert Schuman, Alcide De Gasperi and Konrad Adenauer. The latter presided.

1949 was the founding year of the Federal Republic of Germany. However, 1952 was scarcely less significant a year. In that year, fundamental decisions accumulated.

In the midst of the Korean War, Stalin proposed, in notes addressed to the Western occupying powers, that a reunified, albeit neutral, Germany should be created. The aim of these national lures was to undermine the ongoing projects of the Atlantic as well as European integration of the Western German state. The alternative was Germany or Europe.

Internally, the West German community also consolidated that year. On September 1st, the Equalization of Burdens Act became law – a law to settle the consequences of the war. It served primarily to integrate refugees and displaced persons. Looking back, this was probably the most important process of social redistribution in the Federal Republic. And nine days later, on September 10th, the Luxembourg Agreement was signed with the Jewish people in the form of the State of Israel and the Claims Conference in Luxembourg. From a German perspective, this was also an agreement to settle the consequences of the war. It was intended to enable rapid integration of Jewish refugees into the Jewish state. Viewed in such a way, Israel seems like a piece of Central Europe that has been torn out and shoved into the Levant.

For the young Federal Republic, the Reparations Agreement with the Jewish people was the moral building block of its integration into the West. This was quite a calculation. However, more was to come. The visible emotion of the people involved suggests an act of recognition. For the Jewish representatives, this recognition meant a belated acknowledgement of the honour of their people by the state successors of their former tormentors. For the German representatives, the agreement offered hope for atonement, even for reconciliation. The hope that if not here and now, then at least in the foreseeable future. After signing the contract, Konrad Adenauer retired to a chapel for prayer and left with tears in his eyes.

All around, the force of initiation was felt to be a collective founding act. Jakob Altmaier, a social democratic member of the Bundestag of Jewish descent, who was seated at the ceremonial table on the German side, conveys in his memories the image of an inner drama. Faced with the German chancellor, the head of the Israeli delegation, Foreign Minister Moshe Sharett, stood there with "twitching lips," "pale as death." “Deathly silence” dominated the hall. “Only the feathers scribbled, and it smelled like burned sealing wax". This is how Altmaier perceived the scene, which, he continued, "occurred in the shadow of six million murdered European Jews". A scene which, in his words, “no Dante and no Shakespeare could have dreamed up with all their greatness and poetic might."

The significance of this founding act as Germany’s moral entry ticket into the community of nations was probably only understood by a few German contemporaries at the time. The overwhelming majority rejected the agreement. There existed no notion of guilt or at least responsibility for the crimes committed against the Jews. In view of the genocide committed by Germany only a few years earlier – later to become known as the Holocaust – the agreement was felt by those on the Jewish side to be a monstrous transgression, a sin as it were, and that was present everywhere. A Jewish curse weighed heavily upon Germany – a curse from the throats of all those murdered millions.

The fact that the Israeli government issued the prospective German payments as compensation for material damage and not as a kind of relief for the murdered was considered flimsy by the Jewish public, and especially by those in Israel. Above all, the willingness of the Ben-Gurion government to enter into direct negotiations with Germany was denounced as sacrilegious, as was the inevitable act of contact alone.

The Knesset debate on Jerusalem in early January 1952 had been the most tumultuous in Israeli history - a collective outcry against the government's intention to enter into negotiations with Germany. It was up to Moshe Sharett, the Foreign Minister, to present the government's arguments against its critics in Parliament. He carried out this task with polemical poignancy. In doing so, he confronted the opposition parliamentarians with an alternative: with the morality of memory and the requirements of the raison d'état. The memory is backward-looking, committed to the past; that of the raison d'état, on the other hand, is directed toward the requirements of the present and the future. Israel was in a dire state of need, Sharett continued. Only a few years before, the political communal system had been established. However, its viability was by no means guaranteed. The state was lacking everything. Vessels laden with wheat bobbed at sea in front of Haifa. The grain on board could not be released because the state lacked foreign exchange. With refugees and immigrants pouring into the country, the population had tripled in a very short time.

Sharett accused opponents of negotiations to obtain restitution of clinging to a pre-state understanding of reality. Earlier, before Israel had become a state, Sharett said, when the Jews were subjected to persecution and massacres, they had met their enemies with the useless means of curses and profanities. This was a poor, inconsequential protest. Now, opponents of an agreement were continuing this pathetic tradition of a scattered, defenseless people. The opponents of restitution and negotiations did not understand the revolutionary significance of the founding of the state. They babbled on about “eternal curses”, demanded bans on verbal and physical contact, thereby jeopardizing the future and indeed the very existence of the state.

Entering negotiations with the Federal Republic of Germany for restitution, for so-called “compensation” was a painful moment of transformation for Israel; of an internal formation of the state.

In fact, although not visible to the naked eye, a connection prior to the event may prove to be yet more dramatic: namely the legal-anthropological nexus between an absolute genocide like the Holocaust and the question of restitution – or more precisely: the basis for claims for collective restitution arising from collective annihilation.

The systematic connection between absolute genocide and collective claims to restitution stems from the fact that the destruction or extermination of entire families meant that no one survived to assume the succession or to assert a civil claim to the material legacies of the murdered. Property had become heirless through genocide. According to the applicable territorial principle, those legacies would fall into the hands of the state or the local authority on whose territory they were found. Possibly even the German state.

In order to prevent such ethically intolerable consequences, assets and possessions that had become heirless had to be allocated to a collective Jewish beneficiary. The resulting collective claim thus arises from collective crime – the creation of a legal act owed to genocide. The collective Jewish legal entity established in this way is weaker than a fully valid internationally recognized legal entity but is morally strong enough to act on the question of restitution.

The major legal innovation that emerged from the genocide is based on US Military Government Act No. 59 of November 1947. By means of its stipulations, the military government appointed so-called successor organizations for Jewish property that had become heirless, or more precisely: for Jewish property that had been made heirless through murder. Prior to this claim, the claim of the successor organizations, the applicable fiscal law and the associated sovereign right of the state to intervene in heirless assets – the so-called right of escheat – had to give way. Only a corporation authorized to represent “an entire group or class”, as stated by Act No. 59, could lay claim to the heirless property. Such an attribution went hand in hand with the term “the Jewish people as a whole” used in the semantics of Jewish restitution. Thus, the US military law, which regulates the Jewish collective claim to heirless possessions and assets, precedes everything else: also, the Luxembourg Agreement of September 10th 1952, between the Federal Republic of Germany and the Jewish people, now recognized as a collective legal entity, albeit not as a fully valid legal entity – represented by the State of Israel and the Conference on Jewish Material Claims against Germany.

Dan Diner Berlin, 15.09.2022

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