[...]

The Justice for Uncompensated Survivors Today Act, S. 447, passed the Senate on December 12, 2017. A related House Bill H.R.1226 was introduced in the House of Representatives. The texts of both bills S. 447 and H.R. 1226 were similar. Both Bills introduce the enforcement mechanism [of federal law] for the non-binding 2009 Terezin Declaration on Holocaust Era Assets and Related Issues.

The bills mandate the US Department of State to report to Congress on “countries of particular concern” regarding the progress on: 1) returning to the rightful owner any property wrongfully seized or transferred, including religious and communal properties; 2) providing property or compensation for the so-called heirless property in order to assist needy Holocaust survivors, to support Holocaust education, and for other purposes.

[…] Bill S. 447 passed the House of Representatives and was signed into law [by pres. Trump] on May 9, 2018, Public Law No. 115-171 (“Bill”).

  1. The Bill Violates Law, Equity and International Treaty [...]Bill S. 447 enforces demands of compensation for “heirless” Jewish properties "to assist needy Holocaust survivors, to support Holocaust education, and for other purposes.[...]
  2. The Bill is Unconstitutional

The US Congress did not have the constitutional power to enact this Bill.Rule XII Clause 7(c) of the House of Representatives requires that all bills and joint resolutions provide a document stating "as specifically as practicable (…) powers granted to Congress in the Constitution to enact the bill or joint resolution" to be accepted for introduction by the House Clerk.

According to the Constitutional Authority Statement, Congress had the power to enact S. 447 pursuant to Article I Section 8 Clause 3 of the Constitution of the United States. 10/ The cited clause of "Article I Section 8 Clause 3" is commonly known as the Commerce Clause. 11/ It gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Clearly, S 447 is not related to the regulation of commerce and the Commerce Clause because it deals with the welfare of Holocaust survivors.[...]

  1. The Bill is grossly Discriminatory in Nature

The Bill refers to the Terezin Declaration adopted at the 2009 Holocaust Era Assets Conference held in Terezin, Czech Republic. The Terezin Declaration is concerned with the welfare of the Holocaust survivors. Throughout the text, the Terezin Declaration defines Holocaust survivors as "Holocaust (Shoah) survivors and other victims of Nazi persecution." However, in the key section entitled "Immovable (Real) Property" a narrower definition of Holocaust victims is used. Only "Holocaust (Shoah) victims" are included in the real property restitution section while “other victims of Nazi persecution” are clearly excluded from such restitution claims. Clearly the use of the term "Shoah" restricts those

entitled to real property compensation to Jewish victims only. It boldly excludes “other victims of Nazi persecution” such as Polish Holocaust Survivors. [...]

  1. The Bill is Duplicative of ESLI Study

The US Secretary of State report required by the Bill would be duplicative of a comprehensive study published after the Bill was introduced. In accordance with the Terezin Declaration, in 2010 the Czech government established the European Shoah Legacy Institute (ESLI) in Terezin to monitor the progress and advocate for the principles of the Terezin Declaration. 13/ In fulfillment of its mission, ESLI commissioned in 2014 the Holocaust (Shoah) Immovable Property Restitution Study (the “Study”). Published on April 24, 2017, 14/ the Study is the comprehensive compilation of the legislation passed by the 47 states since 1945, dealing with the return or compensation of land and businesses confiscated or otherwise misappropriated during the Holocaust era. 15/

According to the Executive Summary of the Study, Jewish and non-Jewish claimants, heirs, governments, NGOs, and other stakeholders will now have a one-stop resource where all significant Holocaust restitution legislation and case law dealing with immovable property over the last 70 years has been compiled and analyzed.[...]

  1. Genocide Denial Underlines the Premise of the Bill

The Executive Summary of the Study states: "In the aftermath of the Holocaust, returning victims – not only surviving European Jews but also Roma, political dissidents, homosexuals, persons with disabilities, Jehovah’s Witnesses, and others – had to navigate a frequently unclear path to recover their property from governments and neighbors who had failed to protect them, and often, who had been complicit in their persecution." 16/

The above statement is of grave concern to the Polish Americans because it excludes from the definition of victims the second-largest group of victims of German WWII genocide, i.e. ethnic Poles. These victims are either omitted all together or covered under the offensive term "others." [...]

Recommendations

Considering all the above, the Polish American community urges the US Congress to object to the discriminatory treatment of “other victims of Nazi persecution” by the Terezin Conference with respect to real property restitution claims, and to reject the enforcement of any “heirless property” compensation schemes that are discriminatory to non-Jewish victims of the Holocaust, contrary to US law, Western legal tradition, and detrimental to the long-term interests of the United States. [...]

FOOTNOTES

  1. Public Law No: 115-171 (05/09/2018), See: https://www.congress.gov/bill/115th-congress/senate-bill/447
  2. Historically, such legal precedence had been applied by an ensemble of Jewish organizations, linked together in the Claims Conference against Germany established in 1951, which raised demands for compensation, reparation and restitution. Formative as a matrix here was in particular the fact that the reality of the genocide perpetrated by Nazi Germany and the resultant phenomenon of “heirless property” brought about a kind of transformation in the web of claims in civil law, raising these to a public level of quasi-international law — in this way enabling the "Jewish people" to constitute itself as the claimant putting forward a collective demand (See: Dan Diner, Gotthart Wunberg “Restitution and

Memory: Material Restoration in Europe”). Applying the above claim demands to Poland, another victim of the genocide perpetrated by Nazi Germany, would destroy the foundations of international law, duplicate the compensation already made by the Federal Republic of Germany to Israel, legalize the attempted robbery by selfappointed US claims organizations and mix the Polish victims with the German perpetrators. Should such a tribal law concept be applied again, then Germany would have to first compensate Poland and the Polish victims analogically to the Luxembourg Agreement of 1952 between Germany and Israel. Poland should not compensate the self-appointed claims organizations.

  1. Art. II of the 1960 Treaty provides compensation for the following: (a) the nationalization or other taking by Poland of property and of rights and interests in and with respect to property; (b) the appropriation or the loss of use or enjoyment of property under Polish laws, decrees or other measures limiting or restricting rights and interests in and with respect to property, and (c) debts owed by enterprises which have been nationalized or taken by Poland and debts which were a charge upon property which has been nationalized, appropriated or otherwise taken by Poland.
  2. Article IV of the 1960 Treaty provides: After the entry into force of this Agreement the Government of the United States will neither present to the Government of Poland nor espouse claims of nationals of the United States against the Government of Poland to which reference is made in Article I of this Agreement. In the event that such claims are presented directly by nationals of the United States to the Government of Poland, the Government of Poland will refer them to the Government of the United States.
  3. Final Report of the Polish Claims Program, Foreign Claims Settlement Commission of the U.S. https://www.justice.gov/sites/default/files/pages/attachments/2014/10/22/polish_final_report.pdf
  4. Law dated February 20, 1997, DZ. U. 1997 No. 41 Item 251.
  5. Art. 32.1, 1997 Law.
  6. Polish Benefits for Holocaust Victims of Polish Origin, see https://wjro.org.il/polish-benefits/
  7. The Agreement between the Federal Republic of Germany and the State of Israel dated September 10,1952 and ratified by Germany on March 21, 1953.

www.poloniainstitute.net/wp-content/uploads/2019/02/Luxemburg-Agr-Sept-10-1952.pdf

  1. See: https://www.congress.gov/bill/115th-congress/house-bill/1226 From the Congressional Record Online the Government Publishing Office; By Mr. CROWLEY: H.R. 1226 - the following: Article I Section 8 Clause 3, US Constitution [Page H1355].
  2. https://www.law.cornell.edu/wex/commerce_clause.
  3. Even in the area of commercial law, the application of US legislation is limited. In 2010, the Morrison v. National Australia Bank case, the U.S. Supreme Court ruled that securities traded outside the U.S. are no longer within U.S. jurisdiction, effectively forcing actions against securities traded on foreign exchanges to be pursued outside of the United States. The case changed the global landscape for class action recoveries. Gosman, Rise of International Claims Filings, http://frtservices.com/the-rise-of-international-claims-filings
  4. See the ESLI website: http://shoahlegacy.org
  5. According to the World Jewish Restitution Organization website, the Holocaust (Shoah) Immovable Property Restitution Study was published on April 24, 2017.
  6. http://shoahlegacy.org/property-issues/immovable-property/immovable-property-study-2014-2017. Prof. Michael J. Bazyler and Lee Crawford-Boyd led the project, which brought together the research efforts of over 40

pro bono attorneys from major global law firms, including White & Case, O’Melveny & Myers, Morgan Lewis, Fried Frank, and Brownstein Hyatt Farber & Schreck. These pro bono attorneys, under the guidance of Firm directors and associates, completed research reports addressing the status of restitution legislation in an assigned Terezin Declaration country. In addition, the reports provide a preliminary analysis of the country’s compliance with its Terezin Declaration commitments. The Study is available in three versions: The first one is a 1200-page interactive PDF document that can be downloaded in full from this website; the second is an interactive map organized from which individual country reports can be downloaded; and the third is a hard-copy publication of the study through Oxford University Press, which we consider an enormous achievement confirming the high quality and standard of the study.

  1. Executive Summary, 2014 Holocaust (Shoah) Immovable Property Restitution Study, p. 1.
  2. Piotrowski, Poland’s Holocaust, Ethnic Strive, Collaboration with Occupying Forces and Genocide in the Second Republic 1918-1947, McFarland and Company, Inc. 1998, p.23
  3. Cyprian, Sawicki, Nazi Rule in Poland 1939-1945, Polonia Publishing House 1961, pp.79-81.
  4. Extract from Hans Frank Diary, Translation of Document No. 2233 PS (Nuremberg Exhibit USSR 223) Office of Chief Counsel, p.43